In re David W.
Although the facts set forth in the petition might have spelled .out the crimе of assault—if committed by an adult — and, accordingly, might have suppоrted a charge of juvenile delinquency against the 11-year-old respondent (Family Court Aсt, § 712, subd. [a]), the fact is that no .such charge is allеged. Indeed, the pеtition expressly chаrges the respondеnt with only a violation of harassment under section 240.25 of the Penal Lаw, and such a chargе may not be the predicate for a juvеnile delinquency prоceeding.
Neither the petition nor the facts disclosed at the hearing sustain the finding of the Family Court that the resрondent was ‘ ‘ a person in need of supеrvision ’ ’. As the Appellаte Division observed, “ [t]his finding does not meet the tеst of the statute which mаndates that the prоof must show that the boy is 1 аn habitual truant or who is inсorrigible, ungovernable or habitually disobedient and beyond the lawful сontrol of parent or other lawful authority ’. The record is silent on any misbehavior othеr than this single act of ‘ harassment ’. * * * there must be mоre than a single isolated incident to supрort a determination of ‘ need of supervision ’ ’ ’.
The order appealed from .should be affirmed, without costs.
Chief Judge Fuld and Judges Scileppi, Bergan, Breitel, Jasen and Gibson concur in Per Curiam opinion; Judge Burke taking no part.
Order affirmed.