Opinion
June 28, 1971
Appeal from an order of the Family Court of Albany County, entered October 21, 1970, on a juvenile delinquency petition finding appellant guilty of an act which would constitute assault in the third degree (Penal Law, § 120.00) if committed by an adult, for which he was placed in the custody of the Warwick State Training School at Warwick, New York for an indefinite period not to exceed 18 months. The order adjudging appellant a juvenile delinquent should be affirmed. There is sufficient evidence in the record to justify a finding of delinquency on the charge that appellant assaulted Eleanor Baumes. However, the matter must be remitted to Family Court for a dispositional hearing pursuant to section 746 FCT of the Family Court Act (see Matter of John "Y", 36 A.D.2d 790; Matter of Raoul P., 27 A.D.2d 522; Matter of Smith, 21 A.D.2d 737; Matter of Dennis, 20 A.D.2d 86). Order, insofar as it adjudges appellant to be a juvenile delinquent, affirmed, but matter remitted to Family Court of Albany County for a dispositional hearing pursuant to section 746 FCT of the Family Court Act. Herlihy, P.J., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur.