| Matter of Michael Grudge M. |
| 2011 NY Slip Op 00226 [80 AD3d 614] |
| January 11, 2011 |
| Appellate Division, Second Department |
| In the Matter of Michael Grudge M., a Person Alleged to be a JuvenileDelinquent, Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Elizabeth I.Freedman of counsel), for respondent.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, Michael Grudge M.appeals from an order of disposition of the Family Court, Kings County (Freeman, J.), dated February11, 2010, which, upon a fact-finding order of the same court dated November 19, 2009, made after ahearing, finding that he committed acts constituting unlawful possession of weapons by persons under16 (two counts) and acts which, if committed by an adult, would have constituted the crime of criminalpossession of a weapon in the fourth degree (two counts), adjudged him to be a juvenile delinquent,and placed him in the custody of the New York State Office of Children and Family Services for aperiod of 12 months. The appeal from the order of disposition brings up for review the fact-findingorder.
Ordered that the order of disposition is modified, on the law, by deleting the provisions thereofadjudicating the appellant a juvenile delinquent based upon the finding that he committed actsconstituting unlawful possession of weapons by persons under 16 (two counts) and substituting thereforprovisions dismissing the third and fourth counts of the petition; as so modified, the order of dispositionis affirmed, without costs or disbursements, and the fact-finding order is modified accordingly.
The petition in a juvenile delinquency proceeding is sufficient on its face if "the allegations of thefactual part of the petition, together with those of any supporting depositions which may accompany it,provide reasonable cause to believe that the respondent committed the crime or crimes charged," andthe "non-hearsay allegations of the factual part of the petition or of any supporting depositions establish,if true, every element of each crime charged and the respondent's commission thereof" (Family Ct Act§ 311.2 [2], [3]; see Matter of Jahron S., 79 NY2d 632, 635-636 [1992]; Matter of Matthew W., 48 AD3d 587,588 [2008]).
Count one of the petition alleges that the appellant possessed a "gravity knife" (Penal Law §265.00 [5]), an act which, if committed by an adult, would constitute criminal possession of a weaponin the fourth degree in violation of Penal Law § 265.01 (1). Such a charge must be supportedwith [*2]nonconclusory factual allegations in the petition or thesupporting deposition, establishing the basis for the deponent's belief that the object observed in thejuvenile's possession was in fact a gravity knife (see People v Dreyden, 15 NY3d 100, 104 [2010]). Here, thesupporting deposition of the arresting officer contains a description of the gravity knife and its operation,based upon his personal observations and handling of the knife. Thus, contrary to the appellant'scontention, the supporting deposition contains nonconclusory factual support for the allegation, andcount one of the petition is facially sufficient.
Under count two of the petition, the appellant is charged with possession of a "dangerous knife," anact which, if committed by an adult, would constitute criminal possession of a weapon in the fourthdegree in violation of Penal Law § 265.01 (2). A knife may be considered a "dangerous knife"within the meaning of Penal Law § 265.01 (2) when the circumstances of its possessiondemonstrate that the possessor considered it a weapon, even if the knife might not otherwise bedeemed a "dangerous knife" by reason of its inherent characteristics (see Matter of Jamie D.,59 NY2d 589, 593 [1983]; Matter of SeanR., 33 AD3d 925, 926 [2006]). The petition and supporting deposition allege that, at the timeand place that the appellant possessed the aforementioned gravity knife, he also possessed a knifeapproximately 13 inches in length with an 8-inch blade. Given the large size of the knife and that theappellant possessed it concurrently with a gravity knife, which is statutorily defined as a "deadlyweapon" (Penal Law § 10.00 [12]), the petition was facially sufficient to allege the appellant'spossession of a "dangerous knife" (Penal Law § 265.01 [2]; see Matter of Patrick L.,244 AD2d 244, 246-247 [1997]; Matter of Gilberto A., 237 AD2d 285 [1997]).
However, as the presentment agency correctly concedes, neither the petition nor the supportingdeposition provided a sworn, nonhearsay allegation as to the appellant's age, which is an element of thedelinquent act of unlawful possession of weapons by persons under the age of 16, as charged undercounts three and four of the petition (see Penal Law § 265.05). Although the appellantdid not move to dismiss or otherwise challenge the petition on this ground, failure to comply with thepleading requirements of Family Court Act § 311.2 (3) is a nonwaivable jurisdictional defectrequiring dismissal of the applicable counts (see Matter of Matthew W., 48 AD3d 587, 588 [2008]; see alsoMatter of Jahron S., 79 NY2d at 637; Matter of Jamel E., 33 AD3d 797, 798 [2006]). Accordingly, countsthree and four of the petition should have been dismissed. Rivera, J.P., Dillon, Angiolillo and Austin, JJ.,concur.