Opinion
XXXXX
07-26-2019
In the Matter of M.D., A Person Alleged to be a Juvenile Delinquent, Respondent.
Nassau County Attorney's Office, Lucas Kessler, Esq. Howard Sayetta, Esq., Attorney for Defendant M.D.
Nassau County Attorney's Office, Lucas Kessler, Esq. Howard Sayetta, Esq., Attorney for Defendant M.D. Conrad D. Singer, J.
The following papers were read on this Motion: Respondent's Notice of Motion and Supporting Papers 1 Presentment Agency's Affirmation in Opposition to Respondent's Motion to Dismiss 2 Respondent's Affirmation in Reply 3
The respondent in this juvenile delinquency proceeding has moved by Notice of Motion filed June 19, 2019, for an order dismissing the petition filed against her pursuant to Article 3 of the Family Court Act. The petitioner presentment agency filed opposition to the respondent's motion to dismiss and the respondent filed reply papers in further support thereof. The respondent's motion to dismiss is determined as follows:
On May 28, 2019, the petitioner presentment agency, Nassau County Attorney's Office ("presentment agency" or "petitioner"), filed a petition against the respondent, M.D. (D.O.B. x/xx/03) ("respondent"), which charges the respondent with committing acts which, if committed by an adult, would constitute the crimes of Assault in the Third Degree [Penal Law § 120.00(1)], an A Misdemeanor; and Attempted Assault in the Third Degree [Penal Law §§ 110/120.00(1)], a B Misdemeanor. The charges against the respondent stem from her alleged role in an assault against the complainant, alleged to have occurred on March 5, 2019, at about 3:20 P.M., in the vicinity of W. Street in Hempstead, New York.
The respondent has moved to dismiss the presentment agency's petition for facial insufficiency pursuant to FCA § 315.1. The respondent argues that the petition is facially insufficient because it does not conform with FCA § 311.2[3], which provides as follows:
"A petition, or a count thereof, is sufficient on its face when:
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3. 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." (FCA § 311.2[3])
The respondent argues that in this case the non-hearsay allegations in the complainant's supporting deposition do not establish that the respondent acted in concert in attacking the complainant in this action. (Affirmation of Howard E. Sayetta, Esq., in Support of Motion to Dismiss, dated June 18, 2019 ["Aff. in Support"], ¶¶ 4, 6). The respondent further argues that the non-hearsay allegations are insufficient to establish, if true, that the respondent caused the complainant to suffer a "serious injury" as necessary to establish the charge of Assault in the Third Degree. (Aff. in Support, ¶ 6).
The presentment agency argues in opposition that the non-hearsay allegations from the complainant's supporting deposition indicate that the respondent acted in concert with others to assault the complainant, in that the allegations tie the respondent's initial aggressions to the subsequent actions of the other parties and it is a question of fact for trial as to whether the respondent acted "in concert" to assault the complainant. (Affirmation of Lucas J. Kessler, Esq. in Opposition to Respondent's Motion to Dismiss, dated June 26, 2019 ["Aff. in Opp."], ¶ 6[a],[c]). The presentment agency further argues that the non-hearsay allegations are sufficient to make out the criminal acts with which the respondent has been charged even if insufficient to establish that the respondent acted in concert. (Aff. in Opp., ¶ 8).
In her reply, the respondent argues that there is nothing in the supporting deposition that would justify a finding of acting in concert and that the supporting deposition did not connect the respondent to the attack by the high school girls. (Affirmation in Reply of Howard Sayetta, Esq., dated July 3, 2019 ["Reply Aff."], ¶ 3).
DISCUSSION
For a juvenile delinquency petition to be facially sufficient, "the factual part of the petition or of any supporting depositions must set forth sworn, non-hearsay allegations sufficient to establish, if true, every element of each crime charged and the alleged delinquent's commission thereof". (Matter of Tyrone M., 138 AD3d 1119, 1120 [2d Dept. 2016], lv to appeal den., 27 NY3d 910 [2016]; FCA § 311.2[3]). "The failure to comply with this requirement constitutes a nonwaivable jurisdictional defect that deprives the court of subject matter jurisdiction to entertain the petition". (Matter of Tyrone M., supra, 138 AD3d at 1120).
The subject petition charges the respondent with Assault in the Third Degree pursuant to Penal Law § 120.00[1]. Under Penal Law § 120.00[1], "[a] person is guilty of assault in the third degree when: 1. With intent to cause physical injury to another person, he causes such injury to such person or to a third person". (Penal Law § 120.00[1]). Physical injury, in turn, is defined as " impairment of physical condition or substantial pain". (Penal Law § 10.00[9]). The petition further charges the respondent with Attempted Assault in the Third Degree. Under Penal Law § 110.00, "[a] person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime". (Penal Law § 110.00).
In this case, the Court finds that the subject petition satisfies the standard set forth at FCA § 311.2[3], in that the non-hearsay allegations, if true, establish every element of the crimes charged. The respondent is charged under Penal Law §§ 120.00[1] and 110/120.00[1], and the Court finds that the non-hearsay factual allegations in the supporting deposition, including the allegations that the respondent punched the victim in the face and that the victim sustained various physical injuries including substantial pain to her neck and jaw, satisfy this standard. (See Matter of Jose E., 100 AD3d 629 [2d Dept. 2012][Holding that juvenile delinquency petition is facially sufficient where respondent was charged with the criminal acts of Assault in the Third Degree and Attempted Assault in the Third Degree and the victim alleged in her supporting deposition that the respondent punched her in the face and broke her nose]). While the respondent argues that it "would not be possible to conclude" that the victim's injuries resulted from the respondent punching her in the face [Aff. in Support, ¶ 6], such is a question of fact to be determined at the fact-finding.
Furthermore, the Court is not persuaded by the respondent's arguments for dismissal based on whether the petition sufficiently alleges that she acted in concert to commit the criminal acts charged in the petition. The Court of Appeals' decision in People v. Rivera, 84 NY2d 766, 769 [1995] is instructive here. In Rivera, the Court of Appeals held that "[w]hether a defendant is charged [in an indictment] as a principal or as an accomplice to a crime has no bearing on the theory of the prosecution". (Rivera, supra, 84 NY2d at 770). As the Court of Appeals noted, there is "no legal distinction between liability as a principal or criminal culpability as an accomplice". (Rivera, supra, 84 NY2d at 770; see also, Matter of J.H., 16 Misc 3d 1116[A], at *3 [Fam. Ct. Nassau Cty. 2007][referring to Rivera for the proposition that a respondent in a juvenile delinquency proceeding may be charged as a principal or as an accomplice and the particular theory need not be set forth in the juvenile delinquency petition]). As the Court of Appeals reiterated, "[t]he key to understanding accessorial liability is that whether one is the actual perpetrator of the offense or an accomplice is, with respect to criminal liability for the offense, irrelevant". (Rivera, supra, 84 NY2d at 771 [citing to Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 20.00, at 54]). Furthermore, even if it is determined that the respondent was not acting "in concert" with the others in assaulting the complainant, the juvenile petition in this case is facially sufficient based solely on the allegations relating to the respondent allegedly punching the complainant and the complainant sustaining physical injuries.
This Court may "reference judicial interpretations of relevant provisions of the criminal procedure law where 'such interpretations may assist the court in interpreting similar provisions of the Family Court Act'". (Matter of Neftali D., 85 NY2d 631 [1995]; see also Matter of J.H., 16 Misc 3d 1116[A], at *2 [Fam. Ct. Nassau Cty. 2007][referring to Rivera, supra, 84 NY2d 766, for the purposes of assessing the facial sufficiency of a juvenile delinquency petition]).
For these reasons, the respondent's motion to dismiss is denied in its entirety. Accordingly, it is hereby
ORDERED, that the respondent's motion (Motion No. 1) to dismiss the petitioner presentment agency's juvenile delinquency petition is DENIED; and it is further,
ORDERED, that any other requested relief that is not addressed herein is deemed DENIED.
This constitutes the Decision and Order of the Court. PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF THE COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON THE APPELLANT, WHICHEVER IS EARLIEST. ENTER Dated: July 26, 2019 __________ HON. CONRAD D. SINGER Judge of the Family Court