Opinion
February 11, 1993
Appeal from the Family Court of Tompkins County (Barrett, J.).
A juvenile delinquency petition and its supporting depositions must contain "non-hearsay allegations * * * establish[ing if true], every element of each crime charged and the respondent's commission thereof". A petition that does not contain such factual allegations is legally insufficient and jurisdictionally defective (see, Matter of Detrece H., 78 N.Y.2d 107, 109). The petition in this case alleges that respondent committed acts which if committed by an adult would have constituted the unauthorized use of a vehicle in the third degree (Penal Law § 165.05) and criminal possession of stolen property in the fifth degree (Penal Law § 165.40). It is supported by two voluntary statements. It is true that allegations of an evidentiary nature should not be set forth in the petition (Family Ct Act § 311.1 [h]; see, Matter of Jose M., 178 A.D.2d 343). The Court of Appeals has recently determined, however, that this restriction does not apply to the supporting depositions attached to the petition and that the depositions and the petition taken together must establish a prima facie case (Matter of Jahron S., 79 N.Y.2d 632, 639). We agree with respondent that the prima facie case requirement has not been satisfied here. The nonhearsay portions of the depositions establish only that respondent was seen entering a vehicle and trying to start it. As Family Court noted, there are no nonhearsay allegations in the petition or the supporting depositions that this was the vehicle which allegedly had been stolen (see, Matter of David T., 75 N.Y.2d 927). Family Court therefore properly dismissed the petition.
Weiss, P.J., Levine, Mercure, Mahoney and Harvey, JJ., concur. Ordered that the order is affirmed, without costs.