In re Raymond M.

 

Matter of Raymond M. v Benjamin M.

2004 NY Slip Op 09075

Decided on December 6, 2004

Appellate Division, Second 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 December 6, 2004

 

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARMENT

 

NANCY E. SMITH, J.P.

STEPHEN G. CRANE

WILLIAM F. MASTRO

PETER B. SKELOS, JJ.

 

DECISION & ORDER

 

2003-10041

 

[*1]In the Matter of Raymond M. (Anonymous). Orange County Department of Social Services, respondent;

 

and

 

Benjamin M. (Anonymous), appellant. (Proceeding No. 1)

 

In the Matter of Samantha M. (Anonymous). Orange County Department of Social Services, respondent;

 

and

 

Benjamin M. (Anonymous), appellant. (Proceeding No. 2)

 

In the Matter of Tiffany M. (Anonymous). Orange County Department of Social Services, respondent;

 

and

 

Benjamin M. (Anonymous), appellant. (Proceeding No. 3) (Docket Nos. NA-2487-03, NN-2488-03, NN-2489-03)

 

George E. Reed, Jr., White Plains, N.Y., for appellant.

David L. Darwin, Acting County Attorney, Goshen, N.Y.

(Peter R. Schwartz and Stephen

Toole of counsel), for respondent.

Gary E. Eisenberg, Monroe, N.Y., Law Guardian for the

children.

 

In three child protective proceedings pursuant to Family Court Act article 10, the father appeals from an order of disposition of the Family Court, Orange County (Kiedaisch, J.), entered October 27, 2003, which, upon a fact-finding order of the same court entered September 9, 2003, and after a hearing, found that he sexually abused and neglected the children Samantha M. and Tiffany M. and derivatively neglected the child Raymond M. The appeal brings up for review the fact-finding order entered September 9, 2003. [*2]

 

ORDERED that the order of disposition is affirmed, without costs or disbursements.

 

A preponderance of the evidence supported the Family Court's determination that the appellant sexually abused and neglected his two daughters and derivatively neglected his son (see Family Ct. Act 1046[b][i]; Matter of Nicole V., 71 NY2d 112; Matter of Shavar B., 7 AD3d 619). The out-of-court statements of the appellant's daughters and the appellant's own statement to the police corroborated each other (see Matter of Nicole V., supra at 123-124; Matter of Victoria H., 255 AD2d 442; Matter of Latisha W., 221 AD2d 645).

 

Contrary to the appellant's contention, the element of intent to obtain sexual gratification could be inferred from the totality of the circumstances (see Matter of Christopher T., 287 AD2d 336; see generally Matter of Kenny O., 276 AD2d 271, 272; Matter of Gregory W., 266 AD2d 221). In addition, the Family Court providently exercised its discretion in drawing a negative inference against the appellant upon his failure to testify at the hearing (see Matter of Joseph C., 297 AD2d 673).

SMITH, J.P., CRANE, MASTRO and SKELOS, JJ., concur.

 

ENTER:

 

James Edward Pelzer

 

Clerk of the Court

 

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