        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

231
CAF 12-01651
PRESENT: CENTRA, J.P., FAHEY, CARNI, LINDLEY, AND WHALEN, JJ.


IN THE MATTER OF BRANDON A.,
RESPONDENT-APPELLANT.
----------------------------                      MEMORANDUM AND ORDER
LIVINGSTON COUNTY ATTORNEY,
PETITIONER-RESPONDENT.


JOHN M. LOCKHART, ATTORNEY FOR THE CHILD, GENESEO, FOR RESPONDENT-
APPELLANT.


     Appeal from an order of the Family Court, Livingston County
(Robert B. Wiggins, J.), entered April 9, 2012 in a proceeding
pursuant to Family Court Act article 3. The order, inter alia,
adjudicated respondent to be a juvenile delinquent.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the petition is
dismissed.

     On appeal from an order, inter alia, adjudicating respondent to
be a juvenile delinquent based upon his admission that he committed an
act that, if committed by an adult, would constitute the crime of
criminal sale of a controlled substance in the fifth degree (Penal Law
§ 220.31), respondent contends that the petition was facially
insufficient. We agree. We note at the outset that, because a
facially sufficient petition is a jurisdictional prerequisite to
adjudicating respondent a juvenile delinquent, respondent’s admission
does not preclude his challenge to the petition (see Matter of Shane
B., 4 AD3d 650, 651). A juvenile delinquency petition is facially
sufficient when “the allegations of the factual part of the petition,
together with those of any supporting depositions which may accompany
it, provide reasonable cause to believe that the respondent committed
the crime or crimes charged” and when “non-hearsay allegations of the
factual part of the petition or of any supporting depositions
establish, if true, every element of each crime charged and the
respondent’s commission thereof” (Family Ct Act § 311.2 [2], [3]; see
Matter of Angel A., 92 NY2d 430, 433).

     Respondent correctly contends that the petition fails to include
sufficient nonconclusory factual allegations to establish reasonable
cause and a prima facie case for the crime charged. The petition
alleged that respondent knowingly and unlawfully sold a controlled
substance, i.e., Adderall (see Penal Law § 220.31). The Court of
Appeals has made clear that “[s]tanding alone, a conclusory statement
that a substance seized from a defendant was a particular type of
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                                                         CAF 12-01651

controlled substance does not meet the reasonable cause requirement”
(People v Kalin, 12 NY3d 225, 229). Petitioner must provide factual
allegations that establish a reliable basis for inferring the presence
of a controlled substance (see id.; Angel A., 92 NY2d at 434-435).
The petition here is supported by only the conclusory statements of
respondent’s classmate and an officer that the substance was Adderall.
Their statements are not “supported by evidentiary facts showing the
basis for the conclusion that the substance sold was actually
[Adderall]” (People v Dumas, 68 NY2d 729, 731; cf. Kalin, 12 NY3d at
229-231; Angel A., 92 NY2d at 432-435; People v Pearson, 78 AD3d 445,
445, lv denied 16 NY3d 799).




Entered:   April 26, 2013                      Frances E. Cafarell
                                               Clerk of the Court
