Summary
In Verna C., "[t]he supporting affidavit, executed by the arresting officer, simply stated that Deponent observed the Respondent with intent to prevent me from performing my lawful duty, to wit: placing her under arrest, respondent did attempt to cause physical injury to me by kicking me in the groin and did struggle and physically resist being placed in handcuffs'" (143 AD2d at 94).
Summary of this case from People v. SumterOpinion
August 1, 1988
Appeal from the Family Court, Queens County (Torres, J.).
Ordered that the order of disposition is reversed, on the law, without costs or disbursements, the fact-finding order is vacated, and the petition is dismissed.
This juvenile delinquency proceeding was commenced by the filing of a petition on August 22, 1986. The petition alleged, insofar as it is relevant to this appeal, that the appellant committed acts which, if committed by an adult, would have constituted the crimes of resisting arrest and obstructing governmental administration in the second degree. The supporting affidavit, executed by the arresting officer, simply stated that "Deponent observed the Respondent with intent to prevent me from performing my lawful duty, to wit: placing her under arrest, respondent did attempt to cause physical injury to me by kicking me in the groin and did struggle and physically resist being placed in handcuffs".
A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite in a criminal proceeding (see, People v Hall, 48 N.Y.2d 927, rearg denied 49 N.Y.2d 918), as well as in a juvenile delinquency proceeding (see, Matter of Michael G., 93 A.D.2d 836). A petition, including any supporting affidavits, charging an individual with juvenile delinquency, that fails to contain nonhearsay allegations establishing "if true, every element of each crime charged and the respondent's commission thereof" is fatally defective (Family Ct Act § 311.2; see also, People v Alejandro, 70 N.Y.2d 133).
It is clear that the petition herein failed to allege facts which, if true, would establish that the underlying arrest, which was the official function performed by the police officer, was authorized by law. The petition therefore failed to allege facts sufficient to establish all the essential elements of the crimes of resisting arrest (see, Penal Law § 205.30; People v Alejandro, supra) and of obstructing governmental administration in the second degree (see, Penal Law § 195.05; People v Vogel, 116 Misc.2d 332). Accordingly, the petition herein is jurisdictionally defective upon its face. Rubin, J.P., Kooper, Sullivan and Balletta, JJ., concur.