In re Andrew S. , 177 A.D.2d 428 ( 1991 )

Order, Family Court, New York County (Jeffry H. Gallet, J.), entered October 9, 1990, which adjudicated appellant a juvenile delinquent following a fact finding determination that he had committed acts which, if committed by an adult, would have constituted the crimes of attempted robbery in the second degree (two counts), attempted grand larceny in the fourth degree, and menacing, and placed him on probation for a period of 18 months, unanimously affirmed, without costs.

Appellant contends that the juvenile delinquency petition, alleging that he committed acts which if done by an adult, would constitute, among other things, attempted robbery and attempted larceny, was jurisdictionally defective in that there was no factual allegation that he attempted to steal property. The supporting depositions charged, essentially, that appellant, accompanied by another person, approached the complainant, simulated the presence of a weapon by placing his hand under his sweatshirt, and directed the complainant to stay calm. While there was no allegation of an explicit demand for the complainant’s property the police officer-eyewitness’ deposition, attached to the petition, attested that appellant had attempted "to forcibly steal property” from the complainant.

The issue presented is whether the petition is sufficient as to the element of intent to deprive another of property. Unless a juvenile delinquency petition contains non-hearsay allegations, which, if true, establish every element of each crime charged (Family Ct Act § 311.2 [3]), it is both incurably legally insufficient and jurisdictionally defective (Matter of Detrece H., 78 NY2d 107; Matter of David T., 75 NY2d 927).

A similar argument—that an explicit demand for property, either by word or gesture, must be alleged to establish the requisite intent for attempted robbery or larceny—was rejected in People v Bracey (41 NY2d 296). In Bracey, the trial evidence showed that defendant and an accomplice drove to a store, made a token purchase, left the premises, and then returned and displayed a weapon. This evidence, which the court characterized as "fit[ting] a familiar pattern common to robberies” (supra, at 302), was held sufficient to establish an intent to commit robbery. Similarly, here, the facts alleged give rise to an inference that appellant intended to steal property sufficient to support the charges of attempted robbery and attempted larceny. Concur—Sullivan, J. P., Carro, Rosenberger and Rubin, JJ.