
    The People of the State of New York, Plaintiff, v. Walter Rood and Emma Rood, Defendants.
    County Court, Montgomery County,
    November 13, 1967.
    
      Charles H. Clark for defendants. James N. White, District Attorney, for plaintiff.
   William J. Crangle, J.

Defendants move to dismiss two indictments charging them with committing the crime of endangering the welfare of a child. The same criminal acts are charged in both indictments, the one under section 483 of the former Penal Law and the other under section 260.10 of the Penal Law. The indictments allege that the defendants inflicted bruises and abrasions about the head and back of Patricia Bood, a child 22 months of age, and allowed the child to suffer from malnutrition.

Defendants move to dismiss the indictments upon the ground that the Family Court has exclusive, original jurisdiction of child neglect proceedings and of assaults between members of a family under sections 115 and 812 of the Family Court Act.

The indictments do not charge the crime of neglect of a child by its parents or by one responsible for the child’s care as provided in subdivision 2 of section 260.10 of the Penal Law or its predecessor section 483. No allegation of legal responsibility for the child’s support or care is made and the indictments could not be sustained as charging a violation of that subdivision. Therefore -whether or not Family Court might have exclusive, original jurisdiction in child neglect cases is immaterial upon this motion.

It is, however, conceded by the parties that the defendants are the parents of Patricia Rood. In conjunction with this concession the allegations contained in the indictments concern acts which would constitute an assault between members of the same family within the meaning of section 812 of the Family Court Act. Under this section, if the proceedings are transferred to it, the Family Court may order a transfer back to County Court if it concludes that the processes of the Family Court are inappropriate.

The motions to dismiss the indictments are therefore denied and the proceedings are transferred to Family Court pursuant to article 8 of the Family Court Act. (People v. Johnson, 20 N Y 2d 220.) If the Family Court retains jurisdiction, the indictments will be dismissed upon proper motion.  