In re Yacere D.

Jordan M. Freundlich, Lake Success, NY, for appellant.

Raymond A. Tierney, District Attorney, Central Islip, NY (James G. Bernet of counsel), for respondent.

MARK C. DILLON, J.P., ANGELA G. IANNACCI, JOSEPH J. MALTESE, LILLIAN WAN, JJ.

DECISION & ORDER

In a juvenile delinquency proceeding pursuant to Family Court Act article 3, Yacere D. appeals from an order of fact-finding and disposition of the Family Court, Suffolk County (Fernando Camacho, J.), dated May 4, 2022. The order of fact-finding and disposition, insofar as appealed from, after fact-finding and dispositional hearings, and upon an order of fact-finding of the same court dated May 4, 2022, found that Yacere D. committed acts which, if committed by an adult, would have constituted the crimes of manslaughter in the second degree, assault in the third degree, reckless endangerment in the second degree, and reckless driving, and adjudicated him a juvenile delinquent.

ORDERED that the order of fact-finding and disposition is modified, on the law, by deleting the provisions thereof finding that Yacere D. committed an act which, if committed by an adult, would have constituted the crime of assault in the third degree and adjudicating him a juvenile delinquent based upon that finding, and substituting therefor a provision dismissing that count of the petition; as so modified, the order of fact-finding and disposition is affirmed insofar as appealed from, without costs or disbursements, and the order of fact-finding of the same court dated May 4, 2022, is modified accordingly.

The appellant correctly contends that count 5 of the petition, which alleged that he committed an act which, if committed by an adult, would have constituted the crime of assault in the third degree, was jurisdictionally defective. "A juvenile delinquency proceeding is originated in the Family Court by the filing of a petition" ( Matter of Jonathan F., 177 A.D.3d 736, 737, 113 N.Y.S.3d 142 ; 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 a juvenile delinquency 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" ( Matter of Nelson D.-C., 183 A.D.3d 728, 729, 121 N.Y.S.3d 890 ; see Family Ct Act § 311.2[3] ; Matter of Antwaine T., 23 N.Y.3d 512, 515–516, 992 N.Y.S.2d 166, 15 N.E.3d 1175 ). Such allegations must be set forth in the petition or the supporting depositions (see Family Ct Act § 311.2[3] ; Matter of Dennis P.-A., 170 A.D.3d 727, 729, 96 N.Y.S.3d 63 ). "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" ( Matter of Jonathan F., 177 A.D.3d at 737, 113 N.Y.S.3d 142 [internal quotation marks omitted]; see Matter of Antwaine T., 23 N.Y.3d at 516, 992 N.Y.S.2d 166, 15 N.E.3d 1175 ). Here, neither the petition nor the supporting depositions provided sworn, nonhearsay allegations as to a physical injury sustained by the complainant named in count 5 (see Penal Law § 120.00[2] ; see Matter of Jonathan M., 61 A.D.3d 1374, 1376, 877 N.Y.S.2d 575 ; Matter of David I., 258 A.D.2d 805, 806, 685 N.Y.S.2d 859 ). Accordingly, that count was jurisdictionally defective and must be dismissed (see Matter of Ricki I., 157 A.D.3d 792, 793, 66 N.Y.S.3d 896 ; Matter of Diamond J., 134 A.D.3d 1117, 1119, 23 N.Y.S.3d 275 ).

Contrary to the appellant's contention, viewing the evidence adduced at the fact-finding hearing in the light most favorable to the presentment agency (see Matter of David H., 69 N.Y.2d 792, 793, 513 N.Y.S.2d 111, 505 N.E.2d 621 ; Matter of Cordei A.-G., 213 A.D.3d 841, 841, 183 N.Y.S.3d 747 ), we find that it was legally sufficient to establish, beyond a reasonable doubt, that he acted recklessly (see Penal Law §§ 15.05[3] ; 120.20, 125.15[1]; People v. Asaro, 21 N.Y.3d 677, 683–685, 976 N.Y.S.2d 10, 998 N.E.2d 810 ), and that he operated a motor vehicle in a manner which unreasonably interfered with the free and proper use of a public highway, or unreasonably endangered users of the public highway (see Vehicle and Traffic Law § 1212 ; People v. McGrantham, 12 N.Y.3d 892, 894, 885 N.Y.S.2d 244, 913 N.E.2d 936 ; People v. Olsen, 124 A.D.3d 1084, 1086, 1 N.Y.S.3d 555 ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence, we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see Matter of Ernest S.C., 196 A.D.3d 565, 566, 147 N.Y.S.3d 436 ). Upon reviewing the record here, we are satisfied that the Family Court's fact-finding determination that the appellant committed acts which, if committed by an adult, would have constituted the crimes of manslaughter in the second degree, reckless endangerment in the second degree, and reckless driving was not against the weight of the evidence.

The appellant's remaining contention need not be reached in light of our determination.

DILLON, J.P., IANNACCI, MALTESE and WAN, JJ., concur.