In re Andre B.

215 A.D.2d 159, 626 N.Y.S.2d 114, 1995 N.Y. App. Div. LEXIS 4775

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 4, 1995
• Status: Published

Opinion

Order of the Family Court, New York County (Bruce M. Kaplan, J.), entered March 30, 1994, which adjudicated respondent a juvenile delinquent, upon a finding that he had committed acts which, if committed by an adult, would constitute three counts of the crime of criminal possession of a weapon in the third degree (Penal Law § 265.02), unanimously modified, on the law, to reverse the finding as to the first count of the petition and vacate that count, and otherwise affirmed, without costs or disbursements.

Count one of the petition alleged that petitioner was guilty of acts constituting criminal possession of a weapon in the third degree since he committed acts constituting the crime of criminal possession of a weapon in the fourth degree "as defined in subdivision one, two, three or five of section 265.01, and has been previously convicted of any crime” (Penal Law § 265.02 [1]).

Although petitioner submitted three prior fact-finding determinations of the Family Court in support of count one, no supporting deposition or document was attached to the petition alleging that respondent had previously been convicted of a crime. Accordingly, the finding of the Family Court as to this count was fatally deficient, since a prior adjudication of juvenile delinquency does not meet the statutory requirements of a criminal conviction (see, Matter of John N., 168 AD2d 386, 388; see also, Matter of Natasha C., 80 NY2d 678, 682). Therefore, we modify the order of the Family Court to reverse the finding as to this count and dismiss it, while affirming the remainder of the order. Concur—Ellerin, J. P., Rubin, Asch, Nardelli and Mazzarelli, JJ.