Opinion
May 18, 1971
Appeal from an order of the Family Court, Albany County, entered January 12, 1971, which denied a motion to dismiss the petition on the ground that the Family Court had no jurisdiction of the subject matter. The petition charged appellant, then age 15, of having committed certain acts on November 5, 1970 which "if done by an adult, would constitute the crime or crimes of harassment in violation of section 240.25-1-2 of the Penal Law of the State of New York", and sought to have appellant adjudicated a juvenile delinquent. The petition expressly charges harassment under section 240.25 Penal of the Penal Law which is classified as a violation. A "violation" may not be the basis of a juvenile delinquency proceeding because a juvenile delinquent is defined as a person over seven and less than 16 years of age who does any act which if done by an adult, would constitute a crime. (Family Ct. Act, § 712, subd. [a].) "Indeed, the petition expressly charges the respondent with only a violation of harassment under section 240.25 Penal of the Penal Law, and such charge may not be the predicate for a juvenile delinquency proceeding." ( Matter of David W., 28 N.Y.2d 589, 590.) The petition being silent as to any misbehavior other than this single incident, it is also insufficient to confer jurisdiction upon the court to determine whether appellant is a "person in need of supervision" since it does not meet the test of the statute (Family Ct. Act, § 712, subd. [b]), which requires more than a single isolated incident to support a determination of "need of supervision". ( Matter of David W., supra.) The order of the Family Court must, therefore, be reversed and the petition dismissed. Order reversed, on the law, without costs, and petition dismissed. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur.