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

In the Matter of JOHN FF,FN1 Alleged to be a Juvenile Delinquent.

Susan M. Tatro, as Albany County Attorney, Respondent;

John FF,1 Appellant.

Randall E. Kehoe, Law Guardian, Albany, for appellant.

Susan M. Tatro (Heidi A. Malaczynski, of counsel), Albany, respondent in person.


YESAWICH, Justice.

Appeal from an order of the Family Court of Albany County (Maney, J.), entered September 15, 1992, which granted petitioner's application, in a proceeding pursuant to Family Court Act article 3, to adjudicate respondent a juvenile delinquent.

This juvenile delinquency proceeding was brought as a result of a fight between a group of youths and an adult that occurred on December 17, 1991 in the City of Albany. Respondent, then age 15, was alleged to have punched the victim several times about the face and head, acts which, if committed by an adult, would constitute the crime of assault in the third degree. Although the petition recited that respondent struck the victim "with intent to cause physical injury", it also identified the charged crime as being **382Penal Law s 120.00(2) , which deals with reckless, not intentional, conduct. When this discrepancy was brought to the attention of Family Court, the court informed respondent-without objection from petitioner-that he was charged under Penal Law s 120.00(2). Respondent defended himself accordingly, and at the close of the fact-finding hearing Family Court found him guilty, not of assault, but of attempted assault; on that basis, he was adjudicated a juvenile delinquent. After a dispositional hearing, respondent was determined to be in need of supervision and placed on probation for one year.

[1][2] The dispositional order must be reversed. Because one cannot attempt to commit a crime "predicated upon a reckless *808 act" (People v. McDavis, 97 A.D.2d 302, 303, 469 N.Y.S.2d 508; see, People v. Terry, 104 A.D.2d 572, 573, 479 N.Y.S.2d 278; People v. Williams, 40 A.D.2d 1023, 1024, 338 N.Y.S.2d 980), it is impossible to attempt to commit assault in the third degree as that crime is defined by Penal Law s 120.00(2). As there is no such crime (see, People v. Campbell, 72 N.Y.2d 602, 605, 535 N.Y.S.2d 580, 532 N.E.2d 86), the acts which respondent was found to have engaged in cannot be the basis for an adjudication of juvenile delinquency (see, People v. Martinez, 81 N.Y.2d 810, 811-812, 595 N.Y.S.2d 376, 611 N.E.2d 277).

ORDERED that the order is reversed, on the law, without costs, and petition dismissed.

WEISS, P.J., and LEVINE, MERCURE and MAHONEY, JJ., concur.

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