| Matter of Iyona G. |
| 2009 NY Slip Op 02171 [60 AD3d 1403] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of Iyona G., Appellant. Oneida County Attorney,Respondent. |
—[*1] Linda M.H. Dillon, County Attorney, Utica (Raymond F. Bara of counsel), forpetitioner-respondent.
Appeal, by permission of the Appellate Division of the Supreme Court in the Fourth JudicialDepartment, from an order of the Family Court, Oneida County (James R. Griffith, J.), enteredOctober 10, 2007 in a proceeding pursuant to Family Court Act article 3. The order found thatrespondent committed an act that, if committed by an adult, would constitute the crime ofresisting arrest.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs and the petition is dismissed.
Memorandum: This Court granted respondent permission to appeal from a fact-finding order(see Family Ct Act § 1112 [a]), which found that she committed an act that, ifcommitted by an adult, would constitute the crime of resisting arrest (Penal Law §205.30). We agree with respondent that the petition is facially insufficient and thus that reversalis required. Pursuant to Penal Law § 205.30, "[a] person is guilty of resisting arrest whenhe [or she] intentionally prevents or attempts to prevent a police officer or peace officer fromeffecting an authorized arrest of himself[, herself] or another person." "It is an essential elementof the crime of resisting arrest that the arrest be authorized" (People v Alejandro, 70NY2d 133, 135 [1987]). The petition and supporting depositions filed with the petition allegethat respondent resisted arrest while being placed under arrest for "fighting," i.e., disorderlyconduct (§ 240.20 [1]). Disorderly conduct is a violation, and "[a] warrantless arrest of ajuvenile is authorized only in cases where an adult could be arrested 'for a crime' " (Matter ofVictor M., 9 NY3d 84, 87 [2007], quoting Family Ct Act § 305.2 [2]). A crime isdefined in Penal Law § 10.00 (6) as a misdemeanor or a felony, not a violation (seeAnonymous v City of Rochester, 56 AD3d 139, 144 [2008]). Because there is no evidence inthe petition or supporting depositions that the police officers who attempted to arrest the12-year-old respondent believed or had reason to believe that she was at least 16 years old, thepetition and supporting depositions fail to allege that the arrest was "authorized" (VictorM., 9 NY3d at 87; cf. Matter of Carlton F., 25 AD3d 610, 611-612 [2006]). Thus,the petition and supporting depositions fail to allege that respondent committed an act that wouldconstitute the crime of resisting arrest if committed by an adult (see People v Peacock,68 NY2d 675, 677 [1986]; People v Perez, 47 AD3d 1192, 1193 [2008]).Present—Hurlbutt, J.P., Martoche, Carni, Green and Pine, JJ.