In re Ricki I.

Glenn Gucciardo, Northport, NY, for appellant.

Dennis M. Brown, County Attorney, Central Islip, N.Y. (James G. Bernet of counsel), for respondent (no brief filed).

REINALDO E. RIVERA, J.P. SHERI S. ROMAN COLLEEN D. DUFFY FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

Appeal by Ricki I. from an order of disposition of the Family Court, Suffolk County (Richard Hoffman, J.), dated July 29, 2016. The order of disposition, upon an order of fact-finding and after a hearing, determined that he committed an act which constituted the crime of unlawful possession of weapons by persons under sixteen, adjudged him to be a juvenile delinquent, and placed him under the supervision of the Suffolk County Department of Probation until July 28, 2018.

ORDERED that the order of disposition is reversed, on the law, without costs or disbursements, the order of fact-finding is vacated, the petition is dismissed, and the matter is remitted to the Family Court, Suffolk County, for the purpose of entering an order pursuant to Family Court Act § 375.1.

A juvenile delinquency proceeding is originated in the Family Court by the filing of a petition (see Family Ct Act § 310.1[1] ; Matter of Michael M., 3 N.Y.3d 441, 445, 788 N.Y.S.2d 299, 821 N.E.2d 537 ). For the petition, or a count thereof, to be sufficient on its face, the factual part of the petition or of any supporting depositions must set forth sworn, nonhearsay allegations sufficient to establish, if true, every element of each crime charged and the alleged delinquent's commission thereof (see Family Ct Act § 331.2[3] ; Matter of Markim Q., 7 N.Y.3d 405, 407, 822 N.Y.S.2d 746, 855 N.E.2d 1160 ; Matter of Michael M., 3 N.Y.3d at 445, 788 N.Y.S.2d 299, 821 N.E.2d 537 ; Matter of Neftali D., 85 N.Y.2d 631, 635, 628 N.Y.S.2d 1, 651 N.E.2d 869 ; Matter of Jahron S., 79 N.Y.2d 632, 639, 584 N.Y.S.2d 748, 595 N.E.2d 823 ). Such allegations must be set forth in the petition and/or the supporting depositions (see Family Ct Act § 311.2[3] ; Matter of Jahron S., 79 N.Y.2d at 635–636, 584 N.Y.S.2d 748, 595 N.E.2d 823 ). The failure to comply with this requirement constitutes a nonwaivable jurisdictional defect that deprives the court of subject matter jurisdiction to entertain the petition or count (see Matter of Neftali D., 85 N.Y.2d at 634, 628 N.Y.S.2d 1, 651 N.E.2d 869 ). Here, neither the petition nor the supporting deposition provided sworn, nonhearsay allegations

as to the appellant's age, which is an element of the crime of unlawful possession of weapons by persons under 16 (see Penal Law § 265.05 ; Matter of Diamond J., 134 A.D.3d 1117, 1118, 23 N.Y.S.3d 275 ; Matter of Michael Grudge M., 80 A.D.3d 614, 615, 915 N.Y.S.2d 286 ; Matter of Divine D., 79 A.D.3d 940, 941, 912 N.Y.S.2d 888 ; Matter of Matthew W., 48 A.D.3d 587, 588, 852 N.Y.S.2d 223 ). Accordingly, the petition was jurisdictionally defective and must be dismissed (see Matter of Diamond J., 134 A.D.3d at 1118, 23 N.Y.S.3d 275 ; Matter of Michael Grudge M., 80 A.D.3d at 615, 915 N.Y.S.2d 286 ; Matter of Divine D., 79 A.D.3d at 941, 912 N.Y.S.2d 888 ; Matter of Matthew W., 48 A.D.3d at 588, 852 N.Y.S.2d 223 ).

In light of our determination, we need not reach the appellant's remaining contentions.

RIVERA, J.P., ROMAN, DUFFY and CONNOLLY, JJ., concur.