123 Misc. 2d 364 | N.Y.C. Fam. Ct. | 1984
OPINION OF THE COURT
A determination in this neglect proceeding, commenced pursuant to article 10 of the Family Court Act, requires a decision concerning the extent to which a child’s unsworn, out-of-court statement must be corroborated. Section 1046 (subd [a], par [vi]) of the Family Court Act provides an exception to the hearsay rule, in such proceedings, by permitting use of such a statement, but also provides “that no such statement, if uncorroborated, shall be sufficient to make a fact-finding of abuse or neglect.”
One of the caseworkers testified that he had interviewed the four-year-old child on November 12, 1983, at a hospital, and on that occasion, observed multiple welts and bruises about the body. According to this witness, the child had said, in substance, that her father had kicked her in the stomach and had caused injuries to her back by means of a belt. The other caseworker testified that she had interviewed the child on November 17, 1983, at which time, the child stated that her father had “jumped” on her and hit her with a belt, after he had “jumped” on her mother. This witness also testified to the observation of multiple marks about the body, and four photographs were received into evidence on the basis that they fairly and accurately depicted these marks. Thus, although there was independent evidence to establish that the child had sustained injuries, there was no other corroborative evidence. For example, the manner in which these injuries had been inflicted, as well as the identity of the perpetrator, was not established by any evidence independent from the child’s out-of-court, unsworn statements.
The respondent testified, on his own behalf, and essentially denied the allegations contained in the petition. Specifically, he denied being present at the corespondent’s residence, where the children live, on the day of the alleged incident, and maintained that he had not been in the presence of the children for quite some time prior thereto. It would appear that the respondent had been directed to stay away from the corespondent based upon an order of protection, which had been granted earlier in 1983. Although petitioner contended that the respondent was pres
The legal concept of corroboration is frequently used in criminal law, but the type of corroboration and extent of proof varies, depending upon the situation. For example, a conviction may not be based solely upon evidence of a confession or admission without corroborative proof that the crime was, in fact, committed. (CPL 60.50.) Likewise, a conviction may not be based solely upon the testimony of an accomplice, but, in this situation, the corroborative evidence must tend to connect the defendant with the commission of the crime. (CPL 60.22, subd 1,) In cases of sex offenses, based upon lack of consent resulting from age, mental defect, or mental incapacity, the testimony of the alleged victim is insufficient, without additional evidence establishing an attempt to engage in the sexual act and connecting the defendant with the commission of the offense. (Penal Law, § 130.16.)
The statute itself is silent as to the form or extent of corroboration required. Frequently, the cases decided under section 1046 (subd [a], par [vi]) have involved questions concerning the form of the independent evidence, and, therefore, are not necessarily instructive as to the extent of the required corroboration. (See, e.g., Matter of Margaret W., 83 AD2d 557; Matter of Hawkins, 76 Misc 2d 738.) At least one case discussed the different kinds of corroborative evidence produced at the fact-finding hearing, but did not directly decide whether all or only some of the material allegations, contained in the petition, necessitated corroboration. (See Matter of Rose B., 79 AD2d 1044.)
The unsworn testimony of a child is generally inadmissible in a civil action. (Richardson, Evidence [Prince, 10th
Corroboration has been defined, by reference to Ballantine’s Law Dictionary (3d ed, p 276), as follows: “ ‘evidence of such substantial facts and circumstances as will produce in a sound and prudently cautious mind a confident conclusion that the testimony of the complainant is true in all essentials * * * Corroboration is somewhat less than confirmation’ * * * ‘[A]dditional evidence of a different character to the same point * * * such evidence as tends to confirm and strengthen the testimony of the witness sought to be
Accordingly, this court holds that the same standard applicable to the corroboration of a child’s unsworn testimony in a criminal case or a juvenile delinquency case should be used in connection with out-of-court, unsworn statements received pursuant to section 1046 (subd [a], par [vi]). The corroboration should extend to all of the material elements of the petition, and, as afore-mentioned, the corroborative evidence in the instant case did not include independent proof as to the identity of the person who inflicted the injuries or testimony from an expert or other witness as to the manner in which they had been sustained.
The petitioner contends, in effect, that any deficiency in proof was supplied by the rebuttal evidence. This took the form of testimony by the mother of the children, the corespondent herein, who stated, under oath, that the respondent was present at her residence and did inflict the injuries to the child on November 12,1983. In addition, she testified concerning prior incidents of violence, which the respondent had denied during his cross-examination. Counsel for the petitioner argues that the court has broad
Based upon the foregoing reasons, the petition against the respondent, Steven S., should be dismissed.