| Matter of Christopher M. |
| 2012 NY Slip Op 03193 [94 AD3d 1119] |
| April 24, 2012 |
| Appellate Division, Second Department |
| In the Matter of Christopher M., a Person Alleged to be a JuvenileDelinquent, Respondent. Presentment Agency, Appellant. |
—[*1] Cheryl S. Solomon, Brooklyn, 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 (Elkins, J.), dated October 18,2010, 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]),and it must include, among other things, "a plain and concise factual statement in each countwhich, without allegations of an evidentiary nature, asserts facts supporting every element of thecrime charged and the respondent's commission thereof with sufficient precision to clearlyapprise the respondent of the conduct which is the subject of the accusation" (Family Ct Act§ 311.1 [3] [h]; see Matter ofEdwin O., 91 AD3d 654 [2012]). A petition is sufficient on its face when "theallegations of the factual part of the petition, together with those of any supporting depositionswhich may accompany it, provide reasonable cause to believe that the respondent committed thecrime or crimes charged," and the "non-hearsay allegations of the factual part of the petition or ofany supporting depositions establish, if true, every element of each crime charged and therespondent's commission thereof" (Family Ct Act § 311.2 [3]; see § 311.2[2]; Matter of Jahron S., 79 NY2d 632, 635 [1992]; Matter of Edwin O., 91 AD3d 654 [2012]).
Here, the petition alleged that the respondent committed acts which, if committed by anadult, would constitute the crimes of riot in the second degree (Penal Law § 240.05) andunlawful assembly (Penal Law § 240.10). In a supporting affidavit, the arresting officerstated that, on a public street in Brooklyn, he observed two large groups of individuals, one ofwhich included the respondent, facing each other and "threatening" each other. The officeraffirmed that some individuals were "reaching for their waistbands," and other individualspossessed a golf club, a broomstick, and a belt. When the police attempted to disperse the groups,one individual threw a glass bottle, which shattered on the ground near the police.[*2]
These allegations were facially insufficient as to thecharge against the respondent of riot in the second degree because they failed to state any act oftumultuous or violent conduct engaged in by him. Moreover, because the petition merely allegedthat the respondent was present at the scene, and did not allege facts specific to the respondentfrom which it may be inferred that he shared a community of purpose with others to engage inviolent and tumultuous conduct, the requirements for accessorial liability were not met(see Penal Law § 20.00; People v La Belle, 18 NY2d 405, 412 [1966];People v White, 178 AD2d 452, 453 [1991]; People v Cummings, 131 AD2d865, 866-867 [1987]). Accordingly, the count alleging riot in the second degree was properlydismissed.
The petition was also facially insufficient as to the count alleging unlawful assembly. Otherthan the respondent's mere presence at the scene, there are no specific allegations that link him tothe conduct and purpose of the group and nothing alleged that supports an inference that heshared a community of purpose with others to engage in or prepare to engage in tumultuous andviolent conduct (see Penal Law § 20.00; People v La Belle, 18 NY2d 405[1966]; cf. Matter of Barbara M., 298 AD2d 288 [2002]; Matter of Donovan B.,278 AD2d 95, 95-96 [2000]).
Accordingly, the Family Court properly dismissed the petition for facial insufficiency.Skelos, J.P., Florio, Eng and Roman, JJ., concur. [Prior Case History: 29 Misc 3d1096.]