| Matter of Edwin O. |
| 2012 NY Slip Op 00214 [91 AD3d 654] |
| Jnury 10, 2012 |
| Appellate Division, Second Department |
| In the Matter of Edwin O., a Person Alleged to be a JuvenileDelinquent, Respondent. Presentment Agency, Appellant. |
—[*1] Michael A. Fiechter, Bellmore, N.Y., for respondent.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, the PresentmentAgency appeals from an order of the Family Court, Kings County (Freeman, J.), dated January25, 2011, which dismissed the petition.
Ordered that the order is affirmed, without costs or disbursements.
"[A] petition is the sole instrument for the commencement, prosecution, and adjudication of[a] juvenile delinquency proceeding" (Matter of Detrece H., 78 NY2d 107, 110 [1991],citing Family Ct Act § 310.1), and it must include, among other things, "a plain andconcise factual statement in each count which, without allegations of an evidentiary nature,asserts facts supporting every element of the crime charged and the respondent's commissionthereof with sufficient precision to clearly apprise the respondent of the conduct which is thesubject of the accusation" (Family Ct Act § 311.1 [3] [h]). A petition is sufficient on itsface when "the allegations of the factual part of the petition, together with those of anysupporting depositions which may accompany it, provide reasonable cause to believe that therespondent committed the crime or crimes charged," and the "non-hearsay allegations of thefactual part of the petition or of any supporting depositions establish, if true, every element ofeach crime charged and the respondent's commission thereof" (Family Ct Act § 311.2 [2],[3]; see Matter of Jahron S., 79 NY2d 632, 635 [1992]).
Here, count one of the petition alleged that the respondent committed acts which, ifcommitted by an adult, would constitute the crime of criminal possession of a weapon in thefourth degree, in violation of Penal Law § 265.01 (2). Count two of the petition allegedthat the respondent committed the offense of unlawful possession of weapons by persons under16, in violation of Penal Law § 265.05. In a supporting affidavit, the arresting officeraverred that at approximately 2:45 a.m., on a public street in Brooklyn, he observed the handle ofa kitchen knife which he described as a machete protruding from the respondent's backpack, andthereafter removed the object, discovering that it measured approximately 14 inches in length,with a 9-inch blade, which blade was wrapped in a plastic bag.[*2]
A knife may be considered a "dangerous knife" underPenal Law § 265.01 (2) and § 265.05 "when the circumstances of its possessionincluding the behavior of its possessor demonstrate that the possessor himself [or herself]considered it a weapon and thus a 'dangerous knife' within the contemplation of the statute[s]"(Matter of Jamie D., 59 NY2d 589, 591 [1983]; see Matter of Sean R., 33 AD3d 925, 925-926 [2006]). Here,contrary to the Presentment Agency's contention, the circumstances under which the respondentallegedly possessed the kitchen knife were insufficient to demonstrate that he considered it aweapon (see Matter of Jamie D., 59 NY2d 589 [1983]; Matter of Niazia F. 40 AD3d 292[2007]; Matter of Edward K., 226 AD2d 1097 [1996]; cf. Matter of Carolina P., 83 AD3d847 [2011]; Matter of MichaelGrudge M., 80 AD3d 614 [2011]; Matter of Sean R., 33 AD3d 925 [2006]).
Accordingly, the Family Court properly dismissed the petition as facially insufficient. Skelos,J.P., Hall, Austin and Miller, JJ., concur.