The petitioner, D.M. (hereinafter the “Petitioner”), moves by notice of motion dated September 24, 2020 and pursuant to CPLR §4517 to admit the criminal trial transcript pertaining to respondent E.C. (hereinafter the “Respondent”) in the instant custody and family offense proceeding. The Respondent opposes and cross moves for an order in limine denying the request to admit criminal trial transcripts dated April 4 and April 5, 2019, as well as any additional criminal trial transcripts. Alternatively, he requests that if the court admits one witness’s criminal trial testimony that it admit the entire criminal trial transcript, which would include the testimony of all witnesses. As a preliminary matter, Respondent failed to file a notice of cross-motion as required under CPLR §2215. While the court could deny Respondent’s motion purely based on this procedural defect, it is also denied for the reasons set forth below. The Petitioner’s Motion On September 17, 2017, at the southwest corner of Columbia Street and East Houston Street in the county and state of New York, Respondent pushed the parties’ child and Petitioner observed him push her in the chest, grab her neck with one hand and strike her about the right eye with a closed fist causing bruising, redness and substantial pain to her face in the presence of the parties’ child. (P-Exh. A) As a result, on December 18, 2017, criminal proceedings were commenced against the Respondent. (P-Exh. A) On April 4, 2019, the Respondent was found guilty by a jury of endangering the welfare of a child, attempted assault in the third degree and harassment in the second degree. (P-Exh. B at p. 333-334; P-Exh. C). The Petitioner argues that she testified at great length during the criminal trial, where the facts were identical to the facts to be proven in this family offense proceeding. Respondent was represented by counsel during the criminal proceeding and the Petitioner was subject to rigorous cross-examination. Accordingly, she argues that Respondent had a full and fair opportunity to litigate the allegations in the criminal proceeding that are now before this court. She contends that there is a strong argument under CPLR §4517(a)(3)(v) to admit sworn testimony even when the witness is available to testify when there are “exceptional circumstances.” Petitioner argues that the instant matter presents a special circumstance given domestic violence is at issue in both proceedings. She further argues that the current COVID-19 pandemic constitutes “exceptional circumstances” that weigh against in-person proceedings and that replicating the same testimony from the criminal trial would delay the conclusion of this proceeding, present cumulative evidence and be wasteful of the court’s time. She posits that Respondent would have the opportunity to object to specific portions of Petitioner’s prior testimony, as well as conduct a cross examination, which would allow for a more complete record. Respondent’s Opposition In opposition Respondent argues that Petitioner’s motion should be denied on the grounds that any prior testimony is hearsay, prejudicial and unrelated to this visitation and family offense matter. He notes that upon the Respondent’s criminal conviction the Petitioner moved for summary judgement on the underlying family offense which was granted by decision and order of this court dated December 5, 2019 and the matter is scheduled for a dispositional hearing. While acknowledging that CPLR §4517 provides an exception to the rule against the admissibility of hearsay, he argues that there is no basis to apply the exception in this instance as the witness is available and will be present during the virtual trial of this matter. Respondent contends that no precedent exists to apply the “exceptional circumstance” exception in CPLR §4517. He requests that if the court were to permit the introduction of trial testimony that it should also permit the introduction of testimony of other witnesses who contradicted the Petitioner’s testimony and exclude all non-testimonial colloquy. Respondent argues that he would be prejudiced and deprived of his right to due process without admission of the full trial transcript and ability to question witnesses in person noting that transcript testimony is inferior to personal appearance before the trier of fact, relying on Fowler v. Manahan, 100 AD2d 860 (2d Dep’t 1984). Discussion CPLR §4517(a)(3) provides that the prior trial testimony of any person may be used by any party for any purpose against any other party, provided the court finds: (i) that the witness is dead; or (ii) that the witness is at a greater distance than one hundred miles from the place of trial or is out of the state, unless it appears that the absence of the witness was procured by the party offering the testimony; or (iii) that the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or (iv) that the party offering the testimony has been unable to procure the attendance of the witness by diligent efforts; or (v) upon motion on notice, that such exceptional circumstances exist as to make its use desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court. Judiciary Law §2-b(3) provides that “a court of record has power…to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it.” The unprecedented COVID19 pandemic has exponentially stretched already limited court resources, and trials in this part are presently proceeding virtually on a limited number of days per week, with trials currently being scheduled well into the summer of 2021. To streamline trials and insure that as many litigants as possible are afforded access to justice, this court enacted local part rules after receiving input from various stakeholders. To this end, Rule No.13 provides that: The court encourages direct examination of non-party witnesses by affidavit, when possible, to expedite trials. The direct of non-party witnesses may be presented in affidavit form, unless the Court directs live testimony for case-specific reasons. Rules for Participants in Virtual IDV Court Revised August 7, 2020. In a bifurcated trial, it is not uncommon for parties to stipulate to the admission of testimony from the concluded trial in order to avoid repetition and conserve judicial resources. As pointed out by Respondent, the court has already made a finding as to the underlying family offense in its decision and order dated December 5, 2019 based upon Respondent’s conviction in the related criminal matter, which is no doubt relevant to the dispositional hearing related to the family offense. It is also relevant to the visitation proceeding given the negative impact that domestic violence has on a child’s well-being. See, Matter of Peters v. Blue, 173 Misc 2d 389,394 (N.Y.Cty. Fam.Ct., 1997); see also, Matter of Spencer v. Small, 263 AD2d 783 (3rd Dept., 1999). For this reason, Respondent’s argument that the prior trial testimony is unrelated to the instant visitation and family offense matter lacks merit. The court also does not find that admission of the Plaintiff’s criminal trial testimony would be prejudicial or violative of Respondent’s right to due process given the Respondent had ample opportunity to cross-examine Petitioner during the criminal trial and will have the opportunity to do so again during the virtual hearing. Respondent’s reliance on Fowler v. Manahan, 100 AD2d 860 (2d Dep’t 1984) is misplaced. In Fowler, the court found that allowing eyewitnesses to be deposed would “deprive the trier of the facts of an opportunity to observe such witnesses’ demeanor and their method of answering and, thus, to form a well-grounded opinion as to the weight to accord their testimony.” Fowler v. Manahan, 100 AD2d at 860. In this instance, the court has had ample opportunity to observe Petitioner’s demeanor and will have further chance to do so during her cross-examination. Alva v. Hurley, Fox, Selig, Caprari & Kelleher, 162 Misc 2d 402 (NY Sup. Ct. Rockland Cty.1994)(” While the entire transcript will not be admitted into evidence, there can be no dispute, and indeed counsel have acknowledged, that the testimony of the parties, and conceivably other witnesses, in that prior trial may be admissible under CPLR Rule 4517 upon proper foundation and absent sustainable objection.”) Further, Respondent could choose to call Petitioner as direct witness as part of his case in chief. Accordingly, Plaintiff’s application to admit the transcripts related to the testimonial portion of her own testimony is granted, subject to Respondent’s right to cross-examine and object to specific portions of her testimony. With regard to the application to admit the trial testimony of other witnesses (and Respondent’s request to admit the entire criminal trial transcript), the court finds that absent a stipulation to the contrary, the entire criminal trial testimony shall not be admitted unless the witness is available for cross-examination. Counsel would also be afforded the opportunity to object to specific portions of that witness’ prior testimony. Accordingly, the Petitioner’s motion is granted to the extent set forth herein and Respondent’s cross-motion is denied; and it is further ORDERED, that any relief not expressly granted herein is denied. This constitutes the decision and order of the court. Dated: December 1, 2020
