Matter of M.D.

The following papers were read on this Motion: Respondent’s Notice of Motion and Supporting Papers              1 Presentment Agency’s Affirmation in Opposition to Respondent’s Motion to Dismiss    2 Respondent’s Affirmation in Reply  3 DECISION AND ORDER   The respondent in this juvenile delinquency proceeding has moved by Notice of Motion filed June 19, 2019, for an order dismissing the petition filed against her pursuant to Article 3 of the Family Court Act. The petitioner presentment agency filed opposition to the respondent’s motion to dismiss and the respondent filed reply papers in further support thereof. The respondent’s motion to dismiss is determined as follows: On May 28, 2019, the petitioner presentment agency, Nassau County Attorney’s Office (“presentment agency” or “petitioner”), filed a petition against the respondent, M.D. (D.O.B. x/xx/03) (“respondent”), which charges the respondent with committing acts which, if committed by an adult, would constitute the crimes of Assault in the Third Degree [Penal Law §120.00(1)], an A Misdemeanor; and Attempted Assault in the Third Degree [Penal Law §§110/120.00(1)], a B Misdemeanor. The charges against the respondent stem from her alleged role in an assault against the complainant, alleged to have occurred on March 5, 2019, at about 3:20 P.M., in the vicinity of W. Street in Hempstead, New York. The respondent has moved to dismiss the presentment agency’s petition for facial insufficiency pursuant to FCA §315.1. The respondent argues that the petition is facially insufficient because it does not conform with FCA §311.2[3], which provides as follows: “A petition, or a count thereof, is sufficient on its face when: *** 3. 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.” (FCA §311.2[3]) The respondent argues that in this case the non-hearsay allegations in the complainant’s supporting deposition do not establish that the respondent acted in concert in attacking the complainant in this action. (Affirmation of Howard E. Sayetta, Esq., in Support of Motion to Dismiss, dated June 18, 2019 ["Aff. in Support"],