preponderance standard in New York

1986The concurring opinion of Justice Harlan in In re Winship (supra) is instructive on why New York promulgated the preponderance standard in CPL 410.70 (3).

1982The handbook for proceedings in the New York Family Court of the State of New York, prepared under the direction of the Office of Projects Development of the Appellate Division, First Department, notes that “Preponderance standard may be unconstitutional given the nature of the proceeding” citing Matter of Winship ( 397 US 358 ), where the Supreme Court required the beyond a reasonable doubt standard in juvenile delinquency cases although the preponderance standard was upheld in Matter of Fred S. (supra).

2014In addition to these considerations, we agree with the Wyatt court that defendant’s statutorily protected interest in being free from excessive government monitoring and stigmatization weighs decisively in favor of applying the preponderance of the evidence standard to a defendant’s request for a downward departure (see Wyatt, 89 AD3d at 126-128 ).

2012At that point, the SORA court may exercise its discretion to grant or deny the departure application based upon an examination of all circumstances relevant to the offender’s risk of reoffense and danger to the community” (Wyatt, 89 AD3d at 127-128 ).

2009Co., 103 AD2d 771 [1984]), and it is evidence “that is neither equivocal nor open to opposing presumptions” (Solomon v State of New York, 146 AD2d 439, 440 [1989]; see George Backer Mgt.

1989Co., 103 AD2d 771 [1984]).

1991In Matter of Tammie Z. ( 66 NY2d 1 ), the Court of Appeals specifically held the preponderance standard, applicable to article 10 proceedings (Family Ct Act § 1046 [b] [i]), to be constitutional (see also, Matter of Nicole V., 71 NY2d 112 ).

1987(Matter of Tammie Z., 66 NY2d 1 [1985].) Where a child is found to sustain injury or suffer from a condition that would not ordinarily exist except for the acts or omissions of the person legally responsible for his care, there is prima facie evidence of abuse.

2026Clear and convincing evidence is "a higher, more demanding standard than the preponderance standard" ( People v Britton , 31 NY3d 1019 , 1024 [internal quotation marks omitted]). "[T]o meet [his or] her burden of presenting clear and convincing evidence of [his or] her innocence, [a claimant must] demonstrate that the evidence makes it highly probable that what [he or she] claims is what actually happened with said evidence being neither equivocal nor open to opposing presumptions" ( Serrano v State of New York , 244 AD3d 777 , 778 [internal quotation marks omitted]).

2021"Clear and convincing evidence is a higher, more demanding standard than the preponderance standard and it is evidence that is neither equivocal nor open to opposing presumptions" ( Matter of Duane II. [Andrew II.] , 151 AD3d 1129, 1131 [2017] [internal quotation marks and citations omitted], lv denied 29 NY3d 918 [2017]).

1997Nor did Civil Court find the respective witnesses’ testimony to be “evenly balanced,” requiring, for a preponderance standard, judgment against the party bearing the burden of proof (Rinaldi & Sons v Wells Fargo Alarm Serv., 39 NY2d 191, 196 [if evidence is equally balanced, plaintiff has failed to meet its burden]; D'Amico v Manufacturers Hanover Trust Co., 173 AD2d 263 [same]).

1996A case suggesting to the contrary is Matter of Martin v Ambach ( 111 AD2d 1009 [describing the substantial evidence burden as less exacting than the traditional preponderance standard]). . 1 have not considered the affidavits submitted by the two individuals who were teacher’s assistants in the early 1970’s attesting that they received documentation from their employer regarding their retirement options in the fall of 1972.

1996Control Bd., 163 Misc 2d 113, 119 .) Variations on the preponderance standard are rare — -the most common being the burden of proof by clear and convincing evidence applicable in fraud cases.

1994A review of the record reveals that petitioner sustained its burden of establishing neglect by a preponderance of the hearing evidence (Family Ct Act § 1046 [b]), and the burden then shifted to respondent to rebut the evidence by a satisfactory explanation which she failed to do (see, Matter of Vincent M., 193 AD2d 398 ; Matter of Jacinta J., 140 AD2d 990 , 992).

1994A review of the record reveals that petitioner sustained its burden of establishing neglect by a preponderance of the hearing evidence (Family Ct Act § 1046 [b]), and the burden then shifted to respondent to rebut the evidence by a satisfactory explanation which she failed to do (see, Matter of Vincent M., 193 AD2d 398 ; Matter of Jacinta J., 140 AD2d 990 , 992).

1991In Matter of Tammie Z. ( 66 NY2d 1 ), the Court of Appeals specifically held the preponderance standard, applicable to article 10 proceedings (Family Ct Act § 1046 [b] [i]), to be constitutional (see also, Matter of Nicole V., 71 NY2d 112 ).

1987Having determined by a preponderance of the hearing evidence that the "station house showup” procedure was constitutionally impermissible, this court must now evaluate whether the People have established by clear and convincing evidence that the prospective in-court identification testimony of the undercover purchaser is based upon her on-the-scene observations rather than from her observations at the unfair showup confrontation conducted seven hours later, but before her purchase paperwork was prepared (United States v Wade, 388 US 218 , supra; People v Rahming, 26 NY2d 411 ; People v Ballott

1987Having determined by a preponderance of the hearing evidence that the "station house showup” procedure was constitutionally impermissible, this court must now evaluate whether the People have established by clear and convincing evidence that the prospective in-court identification testimony of the undercover purchaser is based upon her on-the-scene observations rather than from her observations at the unfair showup confrontation conducted seven hours later, but before her purchase paperwork was prepared (United States v Wade, 388 US 218 , supra; People v Rahming, 26 NY2d 411 ; People v Ballott

1987Having determined by a preponderance of the hearing evidence that the "station house showup” procedure was constitutionally impermissible, this court must now evaluate whether the People have established by clear and convincing evidence that the prospective in-court identification testimony of the undercover purchaser is based upon her on-the-scene observations rather than from her observations at the unfair showup confrontation conducted seven hours later, but before her purchase paperwork was prepared (United States v Wade, 388 US 218 , supra; People v Rahming, 26 NY2d 411 ; People v Ballott

1986Wigmore, Evidence (Chadbourn rev ed) appears to accept a conclusiveness standard (vol 2, at 259 ["To identify a defendant as the perpetrator of the crime charged, it may become necessary to show former conduct of his, known to be the conduct of the perpetrator”] [emphasis supplied]), while the Second Circuit, at least with respect to willfulness, has held that a preponderance standard is sufficient (United States v Leonard, 524 F2d 1076, 1091, cert denied 425 US 958 ; see, United States v Smith, 727 F2d 214, 220).

1986Respondents do not dispute that the amendment to Education Law § 6510 (3) (c) became effective December 21, 1984 (see, Matter of Asman v Ambach, 64 NY2d 989, 990-991 ) and that the hearing panel was thus obligated to apply the stricter preponderance standard.

1986Since the Board of Regents expressly applied the correct standard, neither a new hearing nor a remittal to that entity is required (cf. Matter of Martin v Ambach, 67 NY2d 975, 977 ; Matter of Libra v University of State of N. Y., — AD2d — [decided herewith]).