Rodney J., Matter of

• Decision Date: 28 April 1994
• Parties: , 633 N.E.2d 1089 In the Matter of RODNEY J., a Person Alleged to be a Juvenile Delinquent, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 485

611 N.Y.S.2d 485

83 N.Y.2d 503, 633 N.E.2d 1089

In the Matter of RODNEY J., a Person Alleged to be a

Juvenile Delinquent, Respondent.

Court of Appeals of New York.

April 28, 1994.

[83 N.Y.2d 504] [633 N.E.2d 1090] Paul A. Crotty, Corp. Counsel of New York City (Elizabeth I. Freedman and Francis F. Caputo, of counsel), for appellant.

[83 N.Y.2d 505] Marcia Egger, Lenore Gittis and Arlene Libowitz, New York City, for respondent.

OPINION OF THE COURT

LEVINE, Judge.

A juvenile delinquency petition was filed against respondent in Family Court, Bronx County, charging him with criminal possession of a weapon in the second degree, two counts of criminal possession of a weapon in the third degree and the unlawful possession of a weapon by a person under 16 years of age. A supporting deposition was attached to the petition, sworn to by Police Officer John Lowe, stating that he had observed respondent in possession of a .22 caliber gun, which upon inspection proved to be loaded. Officer Lowe's deposition contained no allegations regarding the operability of the weapon. Also affixed to the petition was a copy of a police laboratory analysis report, setting forth the results of a ballistics examination of the weapon and stating that the "gun and ammo tested are operable". The report did not contain the signature of any person expressly identified as the tester of the weapon. However, it was signed by a Detective Robert Cotter, identified as a "chemist/technician" in the police laboratory, below a certification which stated:

"I hereby certify that the foregoing report is a true and full copy of the original report. False statements made herein are punishable as a Class 'A' misdemeanor pursuant to section 210.45 of the Penal Law."

Respondent moved to dismiss the petition as jurisdictionally defective due to the absence of nonhearsay allegations establishing every element of the crimes charged, specifically the operability of the gun. Family Court denied the motion, having elicited from the presentment agency a representation that Detective Cotter was in fact the person who prepared the original ballistics report. Respondent ultimately entered an admission to conduct constituting criminal possession of a weapon in the third degree and a final order of disposition was entered.

Respondent appealed and the Appellate Division reversed and dismissed the petition, with one Justice dissenting (194 A.D.2d 342, 598 N.Y.S.2d 487). The Court held that the petition and its supporting documents were facially deficient because they lacked a nonhearsay allegation that the weapon was operable. The Appellate Division granted the presentment agency leave to appeal to this Court and we now affirm.

A juvenile delinquency petition is "the sole instrument for the commencement, prosecution, and adjudication of the juvenile delinquency proceeding" (Matter of Detrece H., 78 N.Y.2d 107, 110, 571 N.Y.S.2d 899, 575 N.E.2d 385) and we have cautioned that a careful assessment of the petition "is particularly acute at the outset of a juvenile delinquency proceeding, where there is no independent Grand Jury-like body to review the evidence and the petition is often the sole 'instrument upon which the [accused] is prosecuted' " (Matter of Edward B., 80 N.Y.2d 458, 464-465, 591 N.Y.S.2d 962, 606 N.E.2d 1353 [quoting People v. Alejandro, 70 N.Y.2d 133, 137], 517 N.Y.S.2d 927, 511 N.E.2d 71).

Family Court Act § 311.1 sets forth the definition and required contents of a petition, and provides in part that it must include "a plain and concise 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 commission thereof" (Family Ct. Act § 311.1[3][h]. Family Court Act § 311.2 addresses the sufficiency of the petition and provides in pertinent part that it is facially sufficient when, inter alia, "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[3]. A petition which does not substantially conform to the requirements of sections 311.1 and 311.2 is defective and subject to dismissal (Family Ct. Act § 315.1[1][a]; [2].

In Matter of Jahron S., 79 N.Y.2d 632, 584 N.Y.S.2d 748, 595 N.E.2d 823, we construed the foregoing provisions as requiring that the petition and supporting depositions, to be legally sufficient, must contain nonhearsay allegations establishing a prima facie case of delinquency (id., at 639, 584 N.Y.S.2d 748, 595 N.E.2d 823). Thus, while the sufficiency of the petition is to be assessed by the factual allegations contained in the petition as well as any supporting documents that may be attached (id., at 638, 584 N.Y.S.2d 748, 595 N.E.2d 823), the omission of nonhearsay allegations concerning any element of the offenses charged renders the petition legally insufficient and constitutes a nonwaivable jurisdictional defect (see, Matter of Detrece H., 78 N.Y.2d 107, 109, 571 N.Y.S.2d 899, 575 N.E.2d 385, supra; Matter of David T., 75 N.Y.2d 927, 929, 555 N.Y.S.2d 675, 554 N.E.2d...