In re Tashawn MM.

Docket Number536022
Decision Date06 July 2023
Citation2023 NY Slip Op 03745
PartiesIn the Matter of Tashawn MM., Alleged to be a Juvenile Delinquent. Tompkins County Attorney, Respondent; Tashawn MM., Appellant.
CourtNew York Supreme Court — Appellate Division

2023 NY Slip Op 03745

In the Matter of Tashawn MM., Alleged to be a Juvenile Delinquent. Tompkins County Attorney, Respondent; Tashawn MM., Appellant.

No. 536022

Supreme Court of New York, Third Department

July 6, 2023


Calendar Date: June 8, 2023

Citizens for Concerned Children, Inc., Ithaca (Thomas G. Shannan of counsel), for appellant.

William J. Troy III, County Attorney, Ithaca (Holly L. Mosher of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Pritzker, Reynolds Fitzgerald and McShan, JJ.

Egan Jr., J.

Appeal from an order of the Family Court of Tompkins County (John C. Rowley, J.), entered August 22, 2022, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 3, to adjudicate respondent a juvenile delinquent.

This juvenile delinquency proceeding against respondent (born in 2004) was commenced in Tioga County in March 2022, alleging that respondent had committed acts in November 2021 that, if committed by an adult, would constitute the crimes of burglary in the second degree and criminal possession of stolen property in the third degree. [1] Thereafter, in satisfaction of the petition, respondent admitted to acts which, if committed by an adult, would constitute the lesser offense of criminal possession of stolen property in the fourth degree. Family Court (Keene, J.) issued an order finding that respondent had engaged in that conduct, as well as an order transferring the proceeding to Tompkins County for disposition. Following a dispositional hearing in Tompkins County, Family Court (Rowley, J.) placed respondent in the custody of the Office of Children and Family Services for a period of 12 months. Respondent appeals from the dispositional order. We stayed that order pending appeal (2022 NY Slip Op 72551[U] [3d Dept 2022]), and now reverse.

Respondent initially challenges the facial sufficiency of the petition, a jurisdictional defect that "is nonwaivable and... is reviewable for the first time upon appeal" (Matter of Michael M., 3 N.Y.3d 441, 443 [2004]; see Matter of Alexander CC., 191 A.D.3d 1113, 1114 [3d Dept 2021]; Matter of Jonathan YY., 134 A.D.3d 1344, 1345 [3d Dept 2015]). Ordinarily, "[t]o be facially sufficient, a juvenile delinquency petition must contain non[ ]hearsay allegations establishing every element of each crime charged and the respondent's commission thereof" (Matter of Alexander CC., 191 A.D.3d at 1114 [internal quotation marks, brackets and citations...

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