preponderance of evidence standard in New York

2002Accordingly, there is no reason why the administrative findings of the Board in the final determination of the defendant’s disciplinary proceedings should not have been given collateral estoppel effect (Allied Chem. v Niagara Mohawk Power Corp., 72 NY2d 271, 276-277 , cert denied 488 US 1005 ).

1989Accordingly, there is no reason why the administrative findings of the Board and the Commissioner in the final determination of defendant’s disciplinary proceeding should not be given collateral estoppel effect (see, Allied Chem. v Niagara Mohawk Power Corp., 72 NY2d 271, 276-277 , cert denied — US —, 109 S Ct 785 ).

1975The court reached this conclusion by emphasizing that "due process commands that no man shall lose his liberty unless the Government has borne the burden of producing the evidence and convincing the factfinder of his guilt.” (Speiser v Randall, 357 US 513, 526 .) Once it laid down this premise the court then observed that due process equally required that all criminal cases “must be proved beyond a reasonable doubt” Matter of Winship, 397 US 358, 364 , supra and, in so doing, rejected the preponderance of evidence test.

1974The Corporation Counsel, with commendable candor, points out that this court has said, “ proof beyond a reasonable doubt is constitutionally required for an adjudication that a minor is a person in need of supervision (see, In re Winship, 397 U. S. 358 ) ” (Matter of Richard S., 27 N Y 2d 802).

2016Matter of Martin v Ambach, 111 AD2d 1009 [3d Dept 1985]), it cannot be said that the failure to apply the preponderance of evidence standard to petitioner was irrational or viola-tive of public policy.

2010(Miller v DeBuono, 90 NY2d at 793-794 ; Lee TT. v Dowling, 87 NY2d at 703; see Agnew v North Colonie Cent.

2010The additional standard applicable to the penalty of termination, moreover, requiring its vacatur if the penalty is “shocking to the court’s sense of fairness” (Lackow v Department of Educ. [or “Board”] of City of N.Y, 51 AD3d at 569 ), provides a further check on disciplinary measures by judicial review.

2010School Dist., 249 AD2d at 799 .) The arbitrator, in any event, assumed the preponderance of evidence standard applied, even if her findings may not reflect it.

2002Accordingly, there is no reason why the administrative findings of the Board in the final determination of the defendant’s disciplinary proceedings should not have been given collateral estoppel effect (Allied Chem. v Niagara Mohawk Power Corp., 72 NY2d 271, 276-277 , cert denied 488 US 1005 ).

2001Pursuant to Family Court Act § 1046 (a) (vi), a child’s out-of-court statements relating to sexual abuse will support a finding of abuse to satisfy the preponderance of evidence standard if they are sufficiently corroborated (see, Matter of Kelly F., 206 AD2d 227, 228 ).

2001By statutory definition, “[a]ny other evidence tending to support the reliability of th[ose] * * * statements * * * shall be sufficient corroboration” (Family Ct Act § 1046 [a] [vi]; see, Matter of Nicole V., 71 NY2d 112, 116 n 1, 118; Matter of Kaitlyn R., 267 AD2d 894, 896 ; Matter of Randy A., 248 AD2d 838, 839 ).

2001By statutory definition, “[a]ny other evidence tending to support the reliability of th[ose] * * * statements * * * shall be sufficient corroboration” (Family Ct Act § 1046 [a] [vi]; see, Matter of Nicole V., 71 NY2d 112, 116 n 1, 118; Matter of Kaitlyn R., 267 AD2d 894, 896 ; Matter of Randy A., 248 AD2d 838, 839 ).

1989Accordingly, there is no reason why the administrative findings of the Board and the Commissioner in the final determination of defendant’s disciplinary proceeding should not be given collateral estoppel effect (see, Allied Chem. v Niagara Mohawk Power Corp., 72 NY2d 271, 276-277 , cert denied — US —, 109 S Ct 785 ).

1987Remittal is therefore necessary for the purpose of having the Hearing Panel reconsider this matter under the preponderance of the evidence standard (see, Matter of Libra v University of State of N. Y, supra).

1987And in Asman v Ambach ( 64 NY2d 989, 990 ), the Court of Appeals made it apparent that the preponderance of evidence standard is applicable to the circumstances presented here, stating "amendments to Education Law § 6510 were to take effect immediately and would apply 'to proceedings in which a notice of hearing has been served on the licensee * * * prior to the effective date of such [amendments]’ ” (supra, at 990, quoting L 1984, chs 1005, 1018).

1984In Matter of Linda C. (supra), the Appellate Division commented on the practical necessity of the preponderance of evidence test in child protective proceedings.

1983Thus, this court has stated: “Although the worthless checks were not related to his law practice, their issuance cannot be condoned and is a violation of professional standards.” (Matter of Kaufman, 32 AD2d 358, 359 ; Matter of Tomicki, supra, p 272 .) Finally, respondent’s contention that the Disciplinary Committee erred in applying the preponderance of evidence rule in this matter is without merit.

1983Thus, this court has stated: “Although the worthless checks were not related to his law practice, their issuance cannot be condoned and is a violation of professional standards.” (Matter of Kaufman, 32 AD2d 358, 359 ; Matter of Tomicki, supra, p 272 .) Finally, respondent’s contention that the Disciplinary Committee erred in applying the preponderance of evidence rule in this matter is without merit.

1983While the Court has held the preponderance of evidence test applicable to suppression hearings involving possible misconduct by the government, Lego v. Twomey, 404 U.S. 477 , 489 * * * (voluntariness of confession); United States v. Matlock, 415 U.S. 164 , 177-78 * * * (consent to search), it has applied the clear and convincing standard to questions of admissibility involving constitutional requirements going to the reliability of evidence, United States v. Wade, 388 U.S. 218 , 240 * * * (circumstances surrounding identification at a showup).

1983While the Court has held the preponderance of evidence test applicable to suppression hearings involving possible misconduct by the government, Lego v. Twomey, 404 U.S. 477 , 489 * * * (voluntariness of confession); United States v. Matlock, 415 U.S. 164 , 177-78 * * * (consent to search), it has applied the clear and convincing standard to questions of admissibility involving constitutional requirements going to the reliability of evidence, United States v. Wade, 388 U.S. 218 , 240 * * * (circumstances surrounding identification at a showup).

1983While the Court has held the preponderance of evidence test applicable to suppression hearings involving possible misconduct by the government, Lego v. Twomey, 404 U.S. 477 , 489 * * * (voluntariness of confession); United States v. Matlock, 415 U.S. 164 , 177-78 * * * (consent to search), it has applied the clear and convincing standard to questions of admissibility involving constitutional requirements going to the reliability of evidence, United States v. Wade, 388 U.S. 218 , 240 * * * (circumstances surrounding identification at a showup).

1982(Family Ct. Act § 164; Matter of Walsh, 59 Misc 2d 917 ; Code Crim.

1980For a well-reasoned opinion rejecting the preponderance of evidence standard in an analogous juvenile delinquency proceeding see, also, Matter of Ralph M. ( 99 Misc 2d 828 ). . “ ‘Dangerous mental disorder’ means: (i) that a defendant currently suffers from a ‘mental illness’ as that term is defined in subdivision twenty of section 1.03 of the mental hygiene law, and (ii) that because of such condition he currently constitutes a physical danger to himself or others.” (CPL 330.20, subd 1, par [c].) “‘Mentally ill’ means that a defendant currently suffers from a mental illness for which care and

1975The court reached this conclusion by emphasizing that "due process commands that no man shall lose his liberty unless the Government has borne the burden of producing the evidence and convincing the factfinder of his guilt.” (Speiser v Randall, 357 US 513, 526 .) Once it laid down this premise the court then observed that due process equally required that all criminal cases “must be proved beyond a reasonable doubt” Matter of Winship, 397 US 358, 364 , supra and, in so doing, rejected the preponderance of evidence test.

1971(Matter of Young, 50 Misc 2d 271 .) The preponderance of evidence rule hence applies to the instant petition, both as to neglect and child abuse.

1954In his answer in this proceeding, the commissioner took the position that his determination should be upheld, “ whether the test is applied on the substantial evidence rule or on the preponderance of evidence rule, whichever is proper ”, but in his brief he asserted that the substantial evidence test was controlling, citing Matter of Dusinberre v. Noyes ( 284 N. Y. 304 ), which was decided before the adoption of the 1950 amendment.

1954In the Matter of Williams v. Du Mond ( 282 App. Div. 76 ) we discussed the effect upon the scope of judicial review of the amendment to section 258-c by chapter 502 of the Laws of 1950.

1904The exceptions to the instructions and to the refusal were well taken, the proper rule under such circumstances is clearly expressed in Canajoharie National Bank v. Diefendorf, 123 N. Y. 191 . “ Such a party makes out his title by presumption until it is impeached by evidence showing the paper had a fraudulent inception and when this is done the plaintiff can no longer rest upon the presumption but must show affirmatively his good faith.” Some evidence was presented by the plaintiffs in rebuttal which might have satisfied the jury of the bona fides of the transaction, but the instruction that