165 Misc. 2d 702 | N.Y.C. Fam. Ct. | 1995
OPINION OF THE COURT
Petitioner, Victoria C., has moved for an order permitting the introduction of expert testimony by a mental health
By petitions filed on January 3, 1995, petitioner alleges that her husband, Higinio C., Sr., and her son, Higinio C., Jr., have committed one or more family offenses, as defined by Family Court Act § 812 (1), and she requests that a final order of protection be issued against each respondent (see, Family Ct Act § 841 [d]; § 842). Mrs. C.’s petitions, as well as family offense petitions filed against her by her husband and son, have been adjourned for a consolidated trial.
In support of her application to introduce expert testimony at the fact-finding hearing, petitioner alleges that her husband has physically and emotionally abused her throughout their 22-year relationship. Petitioner seeks to introduce expert testimony relating to the "battered woman’s syndrome” to explain her reaction to the abuse allegedly inflicted by her husband, specifically, her failure to abandon the marital home prior to January 1995, her use, purchase, and sale of narcotics at her husband’s direction, and the impact that her deafness had in making her dependent upon him.
For purposes of a fact-finding hearing, Family Court Act § 834 provides: "[o]nly competent, material and relevant evidence may be admitted in a fact-finding hearing”.
Because family offense proceedings commenced in the Family Court are civil proceedings (see, People v Williams, 24 NY2d 274; Besharov, Introductory Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act art 8, at 125; 12A Zett-Edmonds-Buttrey-Kaufman, NY Civ Prac, Family Ct Proceedings, § 36.07 [4]; 6 Freed and Brandes, Law and the Family New York, § 10:1 [2d ed]),
Under New York law, "expert opinions are admissible on
The evidence which petitioner proposes to introduce, expert testimony concerning the "battered woman’s syndrome”, has found acceptance in the courts of New York (see, People v Emick, 103 AD2d 643 [manslaughter prosecution]; People v Ciervo, 123 AD2d 393 [manslaughter prosecution]; People v Barrett, 189 AD2d 879 [manslaughter prosecution]; People v Torres, 128 Misc 2d 129 [murder prosecution]; Matter of Glenn G., 154 Misc 2d 677 [child protective proceeding]; People v Rossakis, 159 Misc 2d 611 [murder prosecution]), as well as the courts of other jurisdictions (see, e.g., State v Kelly, 97 NJ 178, 478 A2d 364 [Sup Ct 1984]; State v Borrelli, 227 Conn 153, 629 A2d 1105 [Sup Ct 1993]; State v Koss, 49 Ohio St 3d 213, 551 NE2d 970 [Sup Ct 1990]; State v Cababag, 9 Haw App 496, 850 P2d 716 [Ct App 1993], cert denied 74 Haw 652, 853 P2d 542; People v Aris, 215 Cal App 3d 1178, 264 Cal Rptr 167 [Ct App 1989], rev denied 1990 Cal LEXIS 906; see also, Matter of Glenn G., 154 Misc 2d, at 686-687, supra; Annotation, Admissibility of Expert or Opinion Testimony on Battered Wife or Battered Woman Syndrome, 18 ALR4th 1153 [1982 & 1994 Supps]).
Accordingly, I find that evidence relating to battered woman’s syndrome is presumptively admissible in this family offense proceeding.
. The allegations in a family offense petition need only be established by a fair preponderance of the evidence (see, Family Ct Act § 832; Matter of Holcomb v Holcomb, 176 AD2d 409; Matter of Maryanne PP. v Richard QQ., 192 AD2d 747; Matter of Boyd v Boyd, 193 AD2d 1039).
. Respondents, at this point, have not sought to challenge the admissibility of "battered woman’s syndrome” evidence on the ground that such