IN RE: J.L. (2024)

Order of fact-finding and disposition (one paper), Family Court, Bronx County (Robert D. Hettleman, J.), entered on or about June 9, 2022, which, to the extent appealed from, found that appellant sexually abused the two older subject children and derivatively abused the youngest subject child, unanimously affirmed, without costs.

A preponderance of the evidence supports Family Court's determination that appellant, a person legally responsible for the two older children, sexually abused those children (see Family Ct Act §§ 1012[e][iii];  1046[b][i]), and that he derivatively abused the youngest child, his daughter (see Family Ct Act § 1046[a][i]).  The court properly found that the eldest child's out-of-court statements were sufficiently corroborated by the middle child's out-of-court statements to the detective and by the mother's testimony (see Matter of Nicole V., 71 N.Y.2d 112, 124, 524 N.Y.S.2d 19, 518 N.E.2d 914 [1987];  Matter of Sade B. [Scott M.], 103 A.D.3d 519, 520, 960 N.Y.S.2d 85 [1st Dept. 2013]).  Family Court also properly determined that the mother's testimony corroborated the older children's out-of-court statements that appellant was alone with them when she was not home (see Matter of A.P. [M.P.], 183 A.D.3d 535, 536, 124 N.Y.S.3d 32 [1st Dept. 2020]).  Appellant's intent to gain sexual gratification from raping the two older children was properly inferred from the acts themselves (see Matter of Ada G.-L. [Christopher G.-L.], 188 A.D.3d 488, 489, 132 N.Y.S.3d 291 [1st Dept. 2020]).  There is no reason to disturb the court's evaluation of the evidence, including its credibility determinations, as the findings were clearly supported by the record (see Matter of Ilene M., 19 A.D.3d 106, 106, 796 N.Y.S.2d 87 [1st Dept. 2005]).  Furthermore, the court properly drew a negative inference from appellant's failure to testify (see Matter of Itzel A. [Jose V.], 188 A.D.3d 478, 479, 132 N.Y.S.3d 292 [1st Dept. 2020]).

Contrary to appellant's contention, the finding of derivative abuse is not undermined by the fact that the abuse of the two older children occurred about a year before the youngest child was born (see Matter of Kylani R. [Kyreem B.], 93 A.D.3d 556, 557, 941 N.Y.S.2d 46 [1st Dept. 2012]).  The evidence of the abuse demonstrates 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 (see Matter of Karime R. [Robin P.], 147 A.D.3d 439, 441, 46 N.Y.S.3d 581 [1st Dept. 2017]).

Appellant's claim that he was denied a fair trial because his trial counsel failed to submit expert testimony demonstrating the two older children's out-of-court statements were not sufficiently reliable for cross-corroboration is raised for the first time on appeal and unpreserved for appellate review (see Matter of Judith L.C. v. Lawrence Y., 179 A.D.3d 616, 617, 118 N.Y.S.3d 573 [1st Dept. 2020], lv denied 35 N.Y.3d 911, 2020 WL 5047416 [2020]), and we decline to review it.  In any event, appellant's mere speculation that having an expert testify about how the detective might have influenced the two older children during their forensic interviews is not sufficient to demonstrate prejudice constituting ineffective assistance of counsel given that he never showed that there were relevant experts who would have been willing to testify in a manner helpful and favorable to his case (see Matter of Julian P. [Colleen Q.], 129 A.D.3d 1222, 1224–1225, 11 N.Y.S.3d 699 [3d Dept. 2015]).