| Matter of Matthew W. |
| 2008 NY Slip Op 01363 [48 AD3d 587] |
| February 13, 2008 |
| Appellate Division, Second Department |
| In the Matter of Matthew W., a Person Alleged to be a JuvenileDelinquent, Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and SusanPaulson of counsel), for respondent.
In related juvenile delinquency proceedings pursuant to Family Court Act article 3, theappeals are from (1) an order of disposition of the Family Court, Kings County (Turbow J.),dated February 9, 2007, which, upon a fact-finding order of the same court dated December 22,2006, made after a hearing, finding that the appellant had committed an act which constituted thecrime of unlawful possession of weapons by persons under 16 and an act which, if committed byan adult, would have constituted the crime of possession of a loaded rifle or shotgun, adjudgedhim to be a juvenile delinquent, and placed him in the custody of the New York State Office ofChildren and Family Services for a period of 12 months under docket No. D-33964-06; and (2)an order of dismissal of the same court, also dated February 9, 2007, which dismissed a petitiondated December 15, 2006, for an extension of placement and a permanency planning hearingunder docket No. D-32498-03. The appeal from the order of disposition brings up for review thefact-finding order dated December 22, 2006.
Ordered that the appeal from so much of the order of dismissal as dismissed the petition foran extension of placement under docket No. D-32498-03 is dismissed, without costs ordisbursements, as the appellant is not aggrieved thereby; and it is further,
Ordered that the appeal from so much of the order of disposition as placed the appellant withthe New York State Office of Children and Family Services for a period of 12 months [*2]is dismissed as academic, without costs or disbursements, as theperiod of placement has expired (seeMatter of Shanita V., 7 AD3d 804 [2004]); and it is further,
Ordered that the order of disposition is modified, on the law, by deleting the provisionthereof adjudicating the appellant a juvenile delinquent based upon the finding that he committedan act which constituted the crime of unlawful possession of weapons by persons under 16 andsubstituting therefor a provision dismissing that count of the petition; as so modified, the order ofdisposition is affirmed insofar as reviewed, without costs or disbursements, and the fact-findingorder is modified accordingly; and it is further,
Ordered that the order of dismissal is affirmed insofar as reviewed, without costs ordisbursements.
The appellant, a juvenile, was found to have committed an act which, if committed by anadult, would have constituted the crime of possession of a loaded rifle or shotgun, and an actwhich constituted the crime of unlawful possession of weapons by persons under 16. Hecontends that the petition was jurisdictionally defective as to the latter count because neither thepetition nor the supporting depositions set forth sworn, nonhearsay allegations as to his age. Thisargument has merit.
A juvenile delinquency proceeding is originated in Family Court by the filing of a petition(see Family Ct Act § 310.1 [1]; Matter of Michael M., 3 NY3d 441 [2004]). For the petition, or acount thereof, to be sufficient on its face, the factual part of the petition or of any supportingdepositions must set forth sworn, nonhearsay allegations sufficient to establish, if true, everyelement of each crime charged and the alleged delinquent's commission thereof (seeFamily Ct Act § 331.2 [3]; Matter of Markim Q., 7 NY3d 405, 407 [2006]; Matter of Michael M., 3 NY3d441 [2004]; Matter of Neftali D., 85 NY2d 631, 635 [1995]; Matter of Jahron S.,79 NY2d 632, 639 [1992]). Such allegations must be set forth in the petition and/or thesupporting depositions (see Family Ct Act § 311.2 [3]; Matter of Jahron S.,79 NY2d at 636). The failure to comply with this requirement constitutes a nonwaivablejurisdictional defect that deprives the court of subject matter jurisdiction to entertain the petitionor count (see Matter of Neftali D., 85 NY2d at 634). Further, because the defect cannotbe cured by amendment, the issue need not be preserved for appellate review (see Matter ofMichael M., 3 NY3d at 449). Here, neither the petition nor the supporting depositionsprovided sworn, nonhearsay allegations as to the appellant's age, which is an element of thecrime of unlawful possession of weapons by persons under 16. Consequently, the petition wasjurisdictionally defective as to that count, and that count must be dismissed.
However, contrary to the appellant's contention, the petition was not jurisdictionallydefective as to the count alleging that he committed an act which, if committed by an adult,would have constituted the crime of possession of a loaded rifle or shotgun. No issue is raised onappeal as to the sufficiency of the proof adduced at the fact-finding hearing as to that count of thepetition.
The appellant's remaining contentions are without merit. Rivera, J.P., Ritter, Dillon andCarni, JJ., concur.