You are here: / / THE NONHEARSAY ALLEGATIONS IN THE JUVENILE DELINQUENCY PETITION DID NOT...
,

THE NONHEARSAY ALLEGATIONS IN THE JUVENILE DELINQUENCY PETITION DID NOT SUFFICIENTLY DEMONSTRATE THE “PHYSICAL INJURY” ELEMENT OF ASSAULT THIRD RENDERING THE PETITION JURISDICTIONALLY DEFECTIVE (SECOND DEPT). ​

The Second Department, reversing (modifying) Family Court in this juvenile delinquency proceeding, determined the factual part of the petition alleging an act which would constitute assault third if done by an adult was jurisdictionally defective because it did not set forth every element of the offense. Specifically the petition did not sufficiently allege “physical injury:”

“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” … . Such allegations must be set forth in the petition or the supporting depositions (see Family Ct Act § 311.2[3] …). “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” … . Here, neither the petition nor the supporting depositions provided sworn, nonhearsay allegations as to a physical injury sustained by the complainant named in count 5 (see Penal Law § 120.00[2] …). Accordingly, that count was jurisdictionally defective and must be dismissed … . Matter of Yacere D., 2023 NY Slip Op 03781, Second Dept 7-12-23

Practice Point: A petition in a juvenile delinquency must include nonhearsay allegations supporting every element of the underlying offense or it is jurisdictionally defective. Here the allegations of physical injury in the context of assault third were insufficient.

 

You might also like
Superior Court Information Jurisdictionally Defective—It Did Not Include Any Offense (or Any Lesser-Included) Which Was in the Original Felony Complaint
Failure to Raise Denial of Constitutional Right to Present a Complete Defense Precluded Appeal
Brutality of Offense Warranted an Upward Departure in SORA Proceeding
THE STATEMENT GIVEN BY THE DEFENDANT WHEN HE WAS UNDER MEDICATION AT THE HOSPITAL SHOULD HAVE BEEN SUPPRESSED; AT TRIAL THE JURY SHOULD HAVE BEEN INSTRUCTED TO REJECT THE STATEMENT IF THEY FOUND IT WAS INVOLUNTARILY MADE; AND THE DEFENSE BATSON CHALLENGE TO THE EXCLUSION OF FOUR AFRICAN-AMERICAN PROSPECTIVE JURORS SHOULD HAVE BEEN GRANTED (SECOND DEPT).
BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF RPAPL 1304 AND DID NOT DEMONSTRATE IT HAD STANDING TO BRING THE FORECLOSURE ACTION, BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
UNEXECUTED CONTRACT THAT COULD NOT BE COMPLETED WITHIN A LIFETIME NOT ENFORCEABLE, ATTORNEY WHO REPRESENTED THE DEFENDANT LLC SHOULD HAVE BEEN DISQUALIFIED IN THIS ACTION BROUGHT ON BEHALF OF A DECEASED MEMBER (SECOND DEPT).
Verdict Finding Defendant’s Negligence Was Not the Proximate Cause of the Injury Set Aside as Against the Weight of the Evidence—Criteria Explained
STIPULATION OF DISCONTINUANCE ENTERED INTO BY PLAINTIFF’S ATTORNEY COULD NOT BE INVALIDATED, EVEN THOUGH PLAINTIFF CHANGED HER MIND BEFORE THE STIPULATION WAS FILED, NO EVIDENCE OF DURESS, FRAUD, MISTAKE, OVERREACHING (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

A STORM DRAIN ALLEGEDLY CAUSED FLOODING ON PLAINTIFFS’ PROPERTY; THE NEGLIGENT... A TEACHER MAY NOT ACCUMULATE CREDIT TOWARD TENURE IN ONE SCHOOL DISTRICT FOR...