In a Sexual Abuse Proceeding—Effects of Victim’s Exercise of Privilege Against Self-Incrimination and Exclusion of Appellant During Testimony of Victim Explained

In a sexual abuse case, the Second Department affirmed Family Court’s finding of abuse and noted the effect of Judith C.Z.’s exercise of her privilege against self-incrimination and the effect of the appellant’s exclusion from the courtroom during the testimony Judith C. Z.:

The failure of [a witness] to testify does not permit the trier of fact to speculate about what his [or her] testimony might have been nor does it require an adverse inference. It does, however, allow the trier of fact to draw the strongest inference against him [or her] that the opposing evidence in the record permits” … . Under the circumstances presented here, we find no basis to disturb the Family Court’s refusal to draw the negative inference urged by the appellant … .

The appellant’s further contention that the Family Court erred in excluding him from the courtroom during the testimony of Judith C. Z. is without merit. The Family Court reasonably concluded that Judith C. Z. would suffer emotional trauma if compelled to testify in front of the appellant …, and, after properly weighing the respective rights and interests of the parties, thereafter providently exercised its discretion in permitting her to testify via a two-way closed-circuit television set-up. “Because the appellant’s attorney was present during the child’s testimony and cross-examined her on the appellant’s behalf, neither the appellant’s due process right nor his Sixth Amendment right of confrontation was violated by his exclusion from the courtroom during the child’s testimony” … .  Matter of Michael U…, 2013 NY Slip Op 06583, 2nd Dept 10-9-13