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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.

 

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