Genesee County Attorney, Petitioner-Respondent. v. <<

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of BOBBY JO F., Respondent-Appellant. Genesee County Attorney, Petitioner-Respondent.

Decided: December 31, 2003

PRESENT:  PIGOTT, JR., P.J., WISNER, KEHOE, LAWTON, AND HAYES, JJ. Susan B. Marris, Manlius, for Respondent-Appellant. John L. Rizzo, County Attorney, Batavia (David J. Pajak of Counsel) Petitioner-Respondent Pro Se.

 Respondent appeals from an order adjudicating him a juvenile delinquent upon a finding that he committed an act that, if committed by an adult, would constitute the crime of forcible touching (Penal Law § 130.52).   We reject his contention that the petition is facially deficient because the supporting depositions are not attached to it.  “Family Court Act § 311.2 measures the sufficiency of a petition by the sum of its two parts:  the verified petition * * * and any supporting depositions filed[, as here,] with the petition” (Matter of Neftali D., 85 N.Y.2d 631, 635, 628 N.Y.S.2d 1, 651 N.E.2d 869;  see Matter of Charles BB., 277 A.D.2d 756, 716 N.Y.S.2d 165).

 Respondent also contends that the petition is facially deficient because it fails to allege lack of consent as an element of the offense (see Penal Law § 130.05).   We disagree.   The complainant's statement, affirmed under penalty of perjury and on file with Family Court, alleges that the complainant is 16 years old, and thus she is deemed incapable of consent (see § 130.05[3] [a] ).   We further reject respondent's contention that the petition is facially deficient because it fails to allege with sufficient specificity when the alleged forcible touching occurred.   Because the petition as amplified by the bill of particulars charges acts allegedly committed during a designated time period, it conforms to the requirements of Family Ct Act § 311.1(3)(g) and thus is facially sufficient (see People v. Morris, 61 N.Y.2d 290, 294, 473 N.Y.S.2d 769, 461 N.E.2d 1256).

 Finally, we conclude that the evidence of lack of consent is legally sufficient (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Petitioner established at the fact-finding hearing that the complainant is less than 17 years old (see Penal Law § 130.05 [2][b];  [3][a] ).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: