Opinion
November 10, 1987
Appeal from the Supreme Court, Erie County, Leaman, J.
Present — Callahan, J.P., Doerr, Boomer, Green and Pine, JJ.
Judgment unanimously affirmed. Memorandum: On appeal from a judgment, following a bench trial, convicting defendant of seven counts of incest (Penal Law § 255.25), defendant claims that his daughter's testimony was not sufficiently corroborated, that Family Court's dismissal of a petition alleging abuse against defendant should collaterally estop the instant prosecution for incest and that defendant was denied the effective assistance of counsel. There is no merit to any of these claims.
Accepting for purposes of argument that the trial court, sitting as the fact finder, correctly found that defendant's daughter was an accomplice (cf., People v. Facey, 115 A.D.2d 11, affd 69 N.Y.2d 836), her testimony that she had intercourse with the defendant in the family home during several weekends in May and June 1985 was sufficiently corroborated. The doctor who examined her following the most recent incident found vaginal abrasions consistent with intercourse, as well as the presence of acid phosphatase not normally found in the vagina and found only in male seminal fluid. No sperm was found in the victim's vagina, which is consistent with the testimony that defendant had a vasectomy. Moreover, medical records refuted the claim that defendant was impotent and physically incapable of intercourse. Lastly, a certified psychiatric social worker who counseled defendant's daughter testified that the daughter conformed to the profile of a sexually abused child. Thus, there was sufficient corroboration of the daughter's testimony to convict defendant of the incest counts charged in the indictment.
Defendant's claim of collateral estoppel was not properly preserved for review and is without merit in any event. Defendant made no pretrial or trial motion and the court made no trial ruling on the collateral estoppel issue. The doctrine is inapt here in any event because the issues in the Family Court and criminal proceedings were not identical (cf., People v. Acevedo, 69 N.Y.2d 478). The indictment charged defendant with committing incest on specific dates not contained in the abuse petition (see, People v. Plevy, 52 N.Y.2d 58, 64-65; People v. Berkowitz, 50 N.Y.2d 333, 346; Nelson v. Dufficy, 104 A.D.2d 234, lv denied 64 N.Y.2d 610; People v. Fagan, 104 A.D.2d 252, affd 66 N.Y.2d 815). Since a child abuse proceeding is civil in nature (see, People v Smith, 62 N.Y.2d 306) with the object to determine whether there is a need to remove a child from its parental home, the issue of defendant's guilt or innocence of incest as charged in the indictment was not necessarily determined by Family Court's dismissal of the abuse petition (Nelson v. Dufficy, supra; People v. Fagan, supra). Moreover, the District Attorney was not the petitioner in the Family Court proceeding (see, People v. Lo Cicero, 14 N.Y.2d 374, 380). Collateral estoppel applies in criminal cases only if the parties are the same (see, Matter of McGrath v. Gold, 36 N.Y.2d 406, 411), or are so closely related that they may be deemed as one (see, People ex rel. Dowdy v Smith, 48 N.Y.2d 477, 482). Since the petitioner and prosecuting attorney in the Family Court proceeding lack such a relationship with the District Attorney, collateral estoppel is inappropriate in this case (see, Nelson v. Dufficy, supra).
Defendant's claim of ineffective assistance of counsel is not established by the record. On the contrary, the record reveals that trial counsel successfully moved to dismiss 20 of the 27 counts of the indictment and otherwise effectively represented defendant throughout the trial.