51 A.D.2d 537 | N.Y. App. Div. | 1976
In a proceeding pursuant to article 7 of the Family Court Act, the appeal (by permission), as limited by appellant’s brief, is from so much of an order of the Family Court, Queens County, dated October 9, 1973, as denied a motion to vacate a fact-finding determination that appellant had committed an act which, if done by an adult, would constitute a crime. The balance of the order dismissed the petition and terminated the proceeding. Order reversed insofar as appealed from, on the law and the facts, without costs, motion granted and fact-finding determination vacated. The record on this appeal reveals (and the Corporation Counsel concedes in his brief) that there was a failure to prove that appellant possessed an instrument in violation of subdivision 4 of section 265.05 of the Penal Law as charged in the petition; accordingly, the fact-finding determination should be vacated. Gulotta, P. J., Hopkins, Martuscello, Cohalan and Rabin, JJ., concur.