In re Jani Faith B.
Matter
of Jani Faith B. (Craig S.)
2013
NY Slip Op 01620
Decided
on March 14, 2013
Appellate
Division, First Department
Published
by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This
opinion is uncorrected and subject to revision before publication in the
Official Reports.
Decided
on March 14, 2013
Andrias,
J.P., Friedman, Acosta, Freedman, Clark, JJ. 9442-
9442A
[*1]In
re Jani Faith B., and Another, Children Under Eighteen Years Of Age, etc.,
and
Craig
S., Respondent-Appellant, Administration for Children's Services,
Petitioner-Respondent.
George
E. Reed, Jr., White Plains, for appellant.
Michael
A. Cardozo, Corporation Counsel, New York (Susan B.
Eisner
of counsel), for respondent.
Julian
A Hertz, Larchmont, attorney for the child, Jani Faith B.
Tamara
A. Steckler, The Legal Aid Society, New York (Claire
V.
Merkine of counsel), attorney for the child, Nassir S.
Order
of fact-finding and disposition, Family Court, New York County (Clark V.
Richardson, J.), entered on or about December 22, 2011, which, to the extent
appealed from, found that appellant father had sexually abused a child for whom
he was legally responsible, and derivatively abused his biological son,
unanimously affirmed, without costs. Appeal from order of protection, same
court and Judge, entered on or about December 22, 2011, which directed
appellant to stay away from and not
communicate
with the children, except for agency-supervised visits, until February 2, 2013,
unanimously dismissed, without costs, as moot.
A
preponderance of the evidence supports the court's determination that appellant
sexually abused his stepdaughter (see Matter of Shirley C.-M., 59 AD3d 360, 360
[1st Dept 2009]). The child's testimony was competent evidence that appellant
sexually abused her, and the fact that she did not have a physical injury or
that there was no corroboration of her testimony does not require a different
result (see Matter of Jonathan F., 294 AD2d 121 [1st Dept 2002]; Matter of
Danielle M., 151 AD2d 240, 242-243 [1st Dept 1989]). Contrary to appellant's
contention, kissing his stepdaughter, while using his tongue, was legally
sufficient evidence to establish "sexual contact" within the meaning
of Penal Law § 130.00 (see Matter of David V., 226 AD2d 319 [1st Dept 1996];
People v Sumpter, 190 Misc 2d 115, 117 [App Term, 1st Dept 2001], lv denied 97
NY2d 762 [2002]). Once the agency established its prima facie case through the
child's testimony, the burden shifted to appellant to explain his conduct and
rebut the [*2]evidence of his culpability, which he failed to do
(see
Matter of Christina G. [Vladimir G.], 100 AD3d 454, 454-455 [1st Dept 2012];
Matter of Elizabeth S. [Dona M.], 70 AD3d 453, 453 [1st Dept 2010]).
The
court properly drew a negative inference against appellant as to the issue of
whether his actions were for the purpose of gratifying his sexual desire since
sexual gratification may be inferred from a totality of the circumstances and
appellant failed to testify and offer an innocent explanation for his actions
(see Matter of Andre N., 282 AD2d 273, 274 [1st Dept 2001], lv denied 96 NY2d
717 [2001]). The court also properly determined that appellant had smoked
marijuana and was drinking prior to the incident because his stepdaughter
credibly testified that she saw him doing so and he failed to rebut these
allegations (see Matter of Ivette R., 282 AD2d 751, 751-752 [2d Dept 2001]).
In
addition, a preponderance of the evidence supports the conclusion that
appellant derivatively abused his son, because his stepdaughter testified that
the child was present in the apartment and had walked into the room while
appellant was sexually abusing her (see Matter of Brandon M.[Luis M.], 94 AD3d
520, 520-521 [1st Dept 2012]; Matter of Kylani R. [Kyreem B.], 93 AD3d 556, 557
[1st Dept 2012]). The evidence of abuse demonstrated that appellant's parental
judgment and impulse control are so defective as to create a substantial risk
of harm to any child in his care.
The
appeal from the order of protection is dismissed as moot since the expiration
date indicated on the order has elapsed (see Matter of Deivi R. [Marcos R.], 68
AD3d 498, 499 [1st Dept 2009]). However, were that not the case, the order of
protection would have to be vacated as having an expiration date, inter alia,
inconsistent with the one the court stated in its ruling on the record.
THIS
CONSTITUTES THE DECISION AND ORDER
OF
THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:
MARCH 14, 2013
CLERK