In re Nelson D.-C.

183 A.D.3d 728

121 N.Y.S.3d 890 (Mem)

In the MATTER OF NELSON D.-C. (Anonymous), Appellant.

2019–10726

Docket No. D–804–19

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

Submitted—March 12, 2020

May 13, 2020

Karyn A. Villar, Hauppauge, NY, for appellant.

Dennis M. Brown, County Attorney, Central Islip, N.Y. (Jennifer L. Basile of counsel), for respondent.

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, SYLVIA O. HINDS–RADIX, JJ.

DECISION & ORDER

In a juvenile delinquency proceeding pursuant to Family Court Act article 3, Nelson D.-C. appeals from an order of fact-finding and disposition of the Family Court, Suffolk County (Matthew Hughes, J.), dated August 22, 2019. The order of fact-finding and disposition, after a hearing, found that Nelson D.-C. committed an act which, if committed by an adult, would have constituted the crime of criminal obstruction of breathing or blood circulation, adjudicated him a juvenile delinquent, and placed him on probation for a period of one year.

ORDERED that the order of fact-finding and disposition is affirmed, without costs or disbursements.

For a juvenile delinquency 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 (see Family Ct Act § 311.2[3] ; Matter of Jzamaine E.M ., 150 A.D.3d 738, 739, 52 N.Y.S.3d 502 ). "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 Ricki I., 157 A.D.3d 792, 793, 66 N.Y.S.3d 896 ). However, dismissal of a juvenile delinquency proceeding is not required "when a deficiency in the petition is not facially apparent but [is only] revealed during the course of the Family Court proceedings" ( Matter of Rodney J., 83 N.Y.2d 503, 508, 611 N.Y.S.2d 485, 633 N.E.2d 1089 ). Here, contrary to the appellant's contention, the juvenile delinquency petition was facially sufficient. The supporting deposition, which had been translated for the complainant by a Spanish-speaking police officer, was not defective, inasmuch as there was no indication on the face of the instrument that the complainant had not read and understood it or was incapable of doing so (see Matter of Jzamaine E.M ., 150 A.D.3d at 739, 52 N.Y.S.3d 502 ). Accordingly, we agree with the Family Court's determination that the appellant was not entitled to dismissal of the petition on the ground that it was facially defective.

There is no merit to the appellant's claim that the Family Court lacked subject matter jurisdiction over the proceeding because the presentment agency failed to present evidence that the appellant was less than 16 years of age when he committed the acts alleged in the petition (see Matter of Anthony S., 112 A.D.3d 948, 978 N.Y.S.2d 293 ; Matter of Anthony J., 143 A.D.2d 668, 669, 532 N.Y.S.2d 924 ).

Viewing the evidence in the light most...