Opinion
August 10, 1992
Appeal from the Family Court, Nassau County (Balkin, J.).
Ordered that the order of disposition is reversed, on the law, without costs or disbursements, the fact-finding order dated March 7, 1989, is vacated, and the petition is dismissed.
It is well settled that "[a] juvenile delinquency petition must contain 'non-hearsay allegations * * * that establish * * * every element of each crime charged and the respondent's commission thereof' (Family Ct Act § 311.2). Any petition that does not contain such factual allegations is both legally insufficient and jurisdictionally defective (see, Family Ct Act § 311.2; Matter of David T., 75 N.Y.2d 927)" (Matter of Detrece H., 78 N.Y.2d 107, 109; see, Matter of Ann SS., 175 A.D.2d 370; Matter of Verna C., 143 A.D.2d 94; Matter of Isaac W., 89 A.D.2d 831). In this case, neither the supporting deposition of the complainant nor the two written statements made to the police by the appellant and another participant in the incident refer to any physical injuries. Since there are no nonhearsay allegations that the complainant had suffered a physical injury as required for the crime of assault in the second degree (see, Penal Law § 120.05), the petition was both legally insufficient and jurisdictionally defective.
Moreover, even if the petition were valid, there was insufficient evidence adduced at the fact-finding hearing to establish that the complainant had sustained a physical injury within the meaning of the statute (see, Penal Law § 120.05; § 10.00 [9]). The complainant testified that after the incident "everything was sore on me" and that his left leg, arm, upper back, and neck were "swollen". Such testimony, without more, was inadequate to support a finding that the appellant had caused a physical injury to the complainant under the assault provisions of the Penal Law (see, Matter of Philip A., 49 N.Y.2d 198; People v. Thomas, 160 A.D.2d 968; People v. Rankin, 155 A.D.2d 977; People v. Powell, 153 A.D.2d 54; People v. Marrero, 88 A.D.2d 998). Balletta, J.P., O'Brien, Ritter and Copertino, JJ., concur.