Verna C., Matter of
| Decision Date | 01 August 1988 |
| Citation | 531 N.Y.S.2d 344,143 A.D.2d 94 |
| Parties | In the Matter of VERNA C. (Anonymous), Appellant. |
| Court | New York Supreme Court — Appellate Division |
Lenore Gittis, New York City (Laura Potter, of counsel), for appellant.
Peter L. Zimroth, Corp. Counsel, New York City (Fay Leousis and Barry P. Schwartz, of counsel), for respondent.
Before RUBIN, J.P., and KOOPER, SULLIVAN and BALLETTA, JJ.
MEMORANDUM BY THE COURT.
In a proceeding pursuant to Family Court Act article 3, the appeal is from an order of disposition of the Family Court, Queens County (Torres, J.), dated May 14, 1987, which, upon a fact-finding order of the same court, entered January 25, 1987, made after a hearing, finding that the appellant had committed acts which, if committed by an adult, would have constituted the crimes of resisting arrest and obstructing governmental administration in the second degree, adjudged her to be a juvenile delinquent and placed her on probation for a period of one year.
ORDERED that the order of disposition is reversed, on the law, without costs or disbursements, the fact-finding order is vacated, and the petition is dismissed.
This juvenile delinquency proceeding was commenced by the filing of a petition on August 22, 1986. The petition alleged, insofar as it is relevant to this appeal, that the appellant committed acts which, if committed by an adult, would have constituted the crimes of resisting arrest and obstructing governmental administration in the second degree. The supporting affidavit, executed by the arresting officer, simply stated that "Deponent observed the Respondent with intent to prevent me from performing my lawful duty, to wit: placing her under arrest, respondent did attempt to cause physical injury to me by kicking me in the groin and did struggle and physically resist being placed in handcuffs".
A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite in a criminal proceeding ( see, People v. Hall, 48 N.Y.2d 927, 425 N.Y.S.2d 56, 401 N.E.2d 179, rearg. denied 49 N.Y.2d 918, 428 N.Y.S.2d 1028, 405 N.E.2d 712), as well as in a juvenile delinquency proceeding (see, Matter of Michael G., 93 A.D.2d 836, 461 N.Y.S.2d 57).
A petition, including any supporting affidavits, charging an individual with juvenile delinquency, that fails to contain nonhearsay allegations establishing "if true, every element of each crime charged and the respondent's commission thereof" is fatally defective (...
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