In re Jonathan F.

177 A.D.3d 736

113 N.Y.S.3d 142

In the MATTER OF JONATHAN F. (Anonymous), Appellant.

2018–10358

Docket No. D–10565–17

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 16, 2019

November 13, 2019

Warren S. Hecht, Forest Hills, NY, for appellant.

James E. Johnson, Corporation Counsel, New York, N.Y. (Fay Ng and Deborah E. Wassel of counsel), for respondent.

RUTH C. BALKIN, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, HECTOR D. LASALLE, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 3, Jonathan F. appeals from an order of disposition of the Family Court, Kings County (Ilana Gruebel, J.), dated August 15, 2018. The order of disposition adjudicated Jonathan F. a juvenile delinquent and placed him on probation for a period of 18 months. The appeal brings up for review so much of an order of fact-finding of the same court dated May 22, 2018, as, after a hearing, found that Jonathan F. committed acts which, if committed by an adult, would have constituted the crimes of assault in the third degree and menacing in the third degree (two counts).

ORDERED that on the Court's own motion, the notice of appeal dated September 4, 2018, is deemed to be a notice of appeal from the order of disposition (see CPLR 5520[c] ; Matter of Lucinda A. [Luba A.], 120 A.D.3d 492, 990 N.Y.S.2d 627 ); and it is further,

ORDERED that the order of disposition is affirmed, without costs or disbursements.

By petition dated April 28, 2017, the presentment agency alleged that the appellant committed acts which, if committed by an adult, would have constituted the crimes of assault in the third degree and menacing in the third degree (two counts). After a fact-finding hearing, the Family Court found beyond a reasonable doubt that the appellant had committed acts which, if committed by an adult, would have constituted the crimes of assault in the third degree and menacing in the third degree (two counts) based on a theory of accomplice liability. The court thereupon adjudicated the appellant a juvenile delinquent and placed him on probation for a period of 18 months.

Contrary to the appellant's contention, the juvenile delinquency petition that was filed against him by the presentment agency was not jurisdictionally defective. A juvenile delinquency proceeding is originated in the Family Court by the filing of a petition (see Family Ct Act § 310.1[1] ; Matter of Michael M., 3 N.Y.3d 441, 445, 788 N.Y.S.2d 299, 821 N.E.2d 537 ). "For the petition, or a count thereof, to be sufficient on its face, the factual part of the petition or of any supporting depositions must set forth sworn, nonhearsay allegations sufficient to establish, if true, every element of each crime charged and the alleged delinquent's commission thereof" ( Matter of Dennis P.-A., 170 A.D.3d 727, 729, 96 N.Y.S.3d 63 ; see Family Ct Act § 311.2[3] ; Matter of Markim Q., 7 N.Y.3d 405, 407, 822 N.Y.S.2d 746, 855 N.E.2d 1160 ; Matter of Michael M., 3 N.Y.3d at 445, 788 N.Y.S.2d 299, 821 N.E.2d 537 ; Matter of Neftali D., 85 N.Y.2d 631, 635, 628 N.Y.S.2d 1, 651 N.E.2d 869 ; Matter of Jahron S., 79 N.Y.2d 632, 639, 584 N.Y.S.2d 748, 595 N.E.2d 823 ). Such allegations must be set forth in the petition or the supporting depositions (see Family Ct Act § 311.2[3] ; Matter of Jahron S., 79 N.Y.2d at 635–636, 584 N.Y.S.2d 748, 595 N.E.2d 823 ). "The failure to comply with this requirement constitutes a nonwaivable jurisdictional defect that deprives the court of subject matter jurisdiction to entertain the petition or count" ( Matter of Dennis P.-A., 170 A.D.3d at 729, 96 N.Y.S.3d 63 ; see Matter of Neftali D., 85 N.Y.2d at 634, 628 N.Y.S.2d 1, 651 N.E.2d 869 ; Matter of Ricki I., 157 A.D.3d 792, 793, 66 N.Y.S.3d 896 ).

Here, upon our review of the petition, we conclude that the supporting depositions set forth sworn, nonhearsay allegations sufficient, if true, to establish that the appellant committed the acts constituting the aforementioned crimes (see Family Ct Act § 311.2[3] ; see also Matter of Dennis P.-A., 170 A.D.3d at 729, 96 N.Y.S.3d 63 ). Accordingly, the petition was not facially deficient. The appellant's contention that the petition was required to formally charge him as an accomplice is without merit. The presentment agency is not required to specify in a juvenile delinquency petition whether a respondent is being charged as a principal or as an accomplice (see People v. Rivera, 84 N.Y.2d 766, 771, 622 N.Y.S.2d 671, 646 N.E.2d 1098 ; People v. Guidice, 83 N.Y.2d 630, 636–637, 612 N.Y.S.2d 350, 634 N.E.2d 951 ; Matter of J.H., 16 Misc.3d 1116 (A), 2007 N.Y. Slip Op. 51441[(U]), 847 N.Y.S.2d 896 [Fam. Ct, Nassau County] ).

"[T]he evidence supporting a fact-finding in a juvenile delinquency proceeding is legally sufficient if, viewing that evidence in the light most favorable to the presentment agency, any rational trier of fact could have found the appellant's commission of all the elements of the...