                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 17, 2015                   521075
________________________________

In the Matter of JONATHAN YY.,
   Alleged to be a
   Juvenile Delinquent.

JEFFREY AUMELL, as Madison                  MEMORANDUM AND ORDER
   County Attorney,
                    Respondent;

JONATHAN YY.,
                    Appellant.
________________________________


Calendar Date:   October 14, 2015

Before:   Lahtinen, J.P., McCarthy, Lynch and Devine, JJ.

                             __________


     Peter E. Smith, Wampsville, for appellant.

      S. John Campanie, County Attorney, Wampsville (Jeffrey A.
Aumell of counsel), for respondent.

                             __________


McCarthy, J.

      Appeal from an order of the Family Court of Madison County
(DiStefano, J.), entered October 21, 2014, which granted
petitioner's application, in a proceeding pursuant to Family Ct
Act article 3, to adjudicate respondent a juvenile delinquent.

      In July 2014, the manager of a Dollar Tree store reported a
larceny after allegedly observing a juvenile, who had entered the
store with approximately seven other juveniles, take a pair of
sunglasses, conceal them and attempt to leave the store. Before
the juvenile exited the store, the manager stopped him and
retrieved the sunglasses, which were worth $1. As a result,
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petitioner filed a juvenile delinquency petition alleging that
respondent (born in 1998) committed the aforementioned act and
that, if that act was committed by an adult, it would constitute
the crime of petit larceny (see Penal Law § 155.25). At
respondent's initial appearance, he admitted to committing the
subject act and Family Court adjudicated him to be a juvenile
delinquent and placed him on probation for one year. Respondent
now appeals, and we reverse.

      A juvenile delinquency petition must contain "non-hearsay
allegations . . . establish[ing] . . . every element of each
crime charged and the respondent's commission thereof" (Family Ct
Act § 311.2 [3]) or else it is "both legally insufficient and
jurisdictionally defective" (Matter of Detrece H., 78 NY2d 107,
109 [1991]; accord Matter of Shane B., 4 AD3d 650, 651 [2004]).
The review of such petitions must be stringent in order to ensure
that there is a "'valid and documented basis'" for the
prosecution (Matter of Angel A., 92 NY2d 430, 433 [1998], quoting
Matter of Neftali D., 85 NY2d 631, 636 [1995]). The facial
insufficiency of a petition is a nonwaivable defect that may be
raised for the first time on appeal (see Matter of Neftali D., 85
NY2d at 637; Matter of Shane B., 4 AD3d at 651).

      The petition does not contain a nonhearsay allegation
identifying respondent as the perpetrator of the theft. In his
sworn statement, the manager asserted that he observed a "youth"
take the sunglasses. He further elaborated that the youth was
"later identified as [respondent]." Accordingly, the manager's
sworn statement indicates that some third person had knowledge
that the detained "youth" was respondent. A statement regarding
a different person's ability to identify a suspect for the
purpose of establishing the truth of that identification is
hearsay (see People v Benjamin, 272 AD2d 276, 277 [2000]; People
v Clark, 178 AD2d 258, 260 [1991]). Petitioner cannot rely on
hearsay for the required allegation that respondent committed the
alleged act. Given that there is no other evidence or sworn
statements supporting the petition, it must be dismissed for a
lack of a nonhearsay allegation identifying respondent as the
youth who took the sunglasses (see Matter of Jayquan VV., 123
AD3d 1416, 1417 [2014]; Matter of Divine D., 79 AD3d 940, 941
[2010]; Matter of Matthew W., 48 AD3d 587, 588 [2008]; Matter of
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Shane B., 4 AD3d at 651-652).1 Respondent's remaining
contentions are rendered academic by this determination.

        Lahtinen, J.P., and Devine, J., concur.


Lynch, J. (dissenting).

      I respectfully dissent. In my view, the manager's
supporting deposition provides direct evidence identifying
respondent as the perpetrator of the larceny. In his statement,
the manager explained that he "observed one of the youths, later
identified as [respondent]" actually take the sunglasses, remove
the tag, place the sunglasses in his pocket and then walk past
the registers without paying. At that point, the manager stopped
respondent and retrieved the sunglasses. The manager's direct
observation of the incident and face-to-face confrontation with
respondent provides a sufficient factual, nonhearsay basis for
identifying respondent as the perpetrator. The "later identified
as [respondent]" comment simply provides the name to complement
the manager's direct identification. It follows that the
petition was legally sufficient.

      Since petitioner's remaining contentions are without merit,
I would affirm Family Court's order.




    1
        Our dissenting colleague assumes the dispositive fact,
i.e., that "the manager stopped respondent [from leaving with the
sunglasses]" (emphasis added). Respondent's identity as the
perpetrator, however, is a fact that must be established by a
nonhearsay allegation. Given that the dissent is unable to
identify a nonhearsay allegation that respondent, rather than
some unidentified youth, committed the alleged act, our
colleague's analysis improperly deprives respondent of the
protections provided to him by Family Ct Act § 311.2 (3).
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      ORDERED that the order is reversed, on the law, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
