Opinion
February 18, 1999
Appeal from the Family Court of Clinton County (McGill, J.).
The petition in this juvenile delinquency proceeding alleges that (1) on August 24, 1997, respondent repeatedly struck his mother in the face and stomach, intending to and in fact causing her physical injury, acts which if committed by an adult would constitute the crime of assault in the third degree, and (2) on October 7, 1997, with intent to cause physical injury, petitioner repeatedly struck his mother in the arms and back, acts which if committed by an adult would constitute the crime of attempted assault in the third degree. Respondent moved to dismiss the petition upon the grounds that it contained no nonhearsay allegations to support the "physical injury" element of the first count ( see, Penal Law § 10.00; § 120.00 Penal [1]) or an intent to cause physical injury on either occasion ( see, Penal Law § 110.00). Family Court denied the motion, concluding that "the documents that have been presented sufficiently apprise the respondent of the conduct which is the subject of the accusation". The matter then proceeded to a fact-finding hearing. Following its denial of respondent's motion to dismiss the petition based upon the insufficiency of the hearing evidence as related to the elements of physical injury and intent, Family Court found that respondent's commission of the crimes of assault in the third degree and attempted assault in the third degree had been proven beyond a reasonable doubt. Respondent appeals from the ensuing juvenile delinquency adjudication and the dispositional order entered thereon.
Initially, we agree with respondent's contention that Family Court erred in refusing to dismiss the first count of the petition based upon the fact that the nonhearsay allegations of the factual part of the petition or of any supporting depositions failed to establish, if true, the "physical injury" element of that count (Family Ct. Act § 311.2 Fam. Ct. Act [3]). Notably, a juvenile delinquency petition that fails to contain "non-hearsay allegations * * * establishing * * * every element of each crime charged and the respondent's commission thereof" (Family Ct. Act § 311.2 Fam. Ct. Act [3]) is "both legally insufficient and jurisdictionally defective" ( Matter of Detrece H., 78 N.Y.2d 107, 109). Such a deficiency cannot be rectified even by an amendment to the petition ( see, id.). Further, in order "to assure that there is a valid and documented basis for subjecting the juvenile to prosecution", the courts are required to apply a "stringent test" when considering challenges to the facial sufficiency of juvenile delinquency petitions ( Matter of Neftali D., 85 N.Y.2d 631, 636; see, Matter of Rodney J., 83 N.Y.2d 503, 506; Matter of Edward B., 80 N.Y.2d 458, 464; Matter of Evan U., 244 A.D.2d 691, 692).
When measured against that standard, the allegations of the petition are found to be seriously deficient. In order to satisfy Family Court Act § 311.2 Fam. Ct. Act (3), it was required that the petition establish through nonhearsay allegations that respondent's assault upon his mother caused her "impairment of a physical condition or substantial pain" (Penal Law § 10.00; § 120.00 Penal [1]). Significantly, the "victim statement" annexed to the petition, which provided the only source of nonhearsay facts, made no mention of the physical effects of the alleged attack. Under the circumstances, Family Court should have dismissed the first count of the petition ( see, Matter of Evan U., supra, at 692-693).
Turning now to the second count of the petition, although we find no clear violation of Family Court Act § 311.2 Fam. Ct. Act (3), we are persuaded by respondent's contention that the evidence adduced at the fact-finding hearing was insufficient to support the element of intent as a matter of law. Respondent's mother testified that she was in the process of removing respondent's stereo and tapes from his room when respondent confronted her. He grabbed hold of a basket of tapes she was carrying, in an effort to get it away from her. Then, "when he finally let go, he started swinging real wild like, hitting [her] * * * with [his] fists, striking [her] in the shoulders, chest [and] sides". When his mother dropped the basket and said she was going to call the police, respondent stopped. Significantly, respondent's attack resulted in no cuts, his mother did not go to the emergency room or seek any other kind of medical treatment and in her testimony she made no mention of any bruises or abrasions. Considering that respondent did not strike his mother with sufficient force to cause her any physical injury (he, in fact, testified that he did not hit her very hard and did not intend to hurt her) and giving due credit to the inference that the natural consequences of one's act are those which were intended ( see, Prince, Richardson on Evidence § 3-138, at 88 [Farrell 11th ed]), we perceive no possible basis in the record for a finding that respondent intended to cause physical injury. Under the circumstances, the second count should have been dismissed as well.
Cardona, P. J., Mikoll, Crew III and Yesawich Jr., JJ., concur.
Ordered that the order is reversed, on the law, without costs, and petition dismissed.