
    The People of the State of New York, Respondent, v. Carlton Earl Lewis, Appellant.
    Argued December 2, 1971;
    decided January 13, 1972.
    
      
      I. Walter Gross for appellant.
    
      Robert M. Ecker, District Attorney, for respondent.
   Per Curiam.

Reaching the issue, left open by our decision in People v. Nuernberger (25 N Y 2d 179, 182), whether incest is an act within the exclusive original jurisdiction of the Family Court conferred by sections 812 and 813 of the Family Court Act, we" conclude that it is not. . Neither the original enactment of section 812 specifying disorderly conduct and assault nor its subsequent amendment to include acts which would constitute harassment, menacing, reckless endangerment and attempted assault (L. 1969, ch. 736), purport to include incest, which, thus, under the familiar rule of construction, will be deemed excluded‘(McKinney’s Cons. Laws of N. Y., Book 1, Statutes, § 240). Neither do we find that act within its intendment (see People v. Fuentes, 51 Misc. 2d 354, 357; People ex rel. Doty v. Krueger, 58 Misc 2d 428, affd. 32 A D 2d 845, app. dsmd. 26 N Y 2d 881).

The order appealed from should be affirmed.

Chief Judge Fuld (concurring).

I am inclined to believe that section 812 of the Family Court Act vests the Family Court with exclusive .original jurisdiction over cases in which a .defendant is charged with committing incest with his minor daughter, particularly when she submitted to the acts solely under; thre.ats of violence. A reading of the statute, having in mind what I deem the intent of the Legislature, leads me to. cop.clude that a father,

who forces his child to have sexual relations with him, commits an “ assault ” upon her within the sense of section 812 and that, consequently, a criminal court is required—by virtue of sections 813 and 814—to transfer the criminal complaint, charging such an act, to the Family Court so that that tribunal may determine, in the first instance, where the proceeding is to be tried. (See People v. Nuernberger, 25 N Y 2d 179, 183 [per Fuld, Ch. J., and Bergan, J., dissenting] ; Matter of Ruth S. v. George S., 63 Misc 2d l.)

Although, ordinarily, I would dissent, I prefer in this instance simply to voice my view and leave to our law-making body the task of amending the statute if the court has misinterpreted its design.

Judges Burke, Scileppi, Bergan, Breitel, Jasen and Gibson concur in Per Curiam opinion; Chief Judge Fuld concurs in a separate opinion.

Order affirmed. 
      
      . There can, of course, be no doubt that, if the charge involves an assault upon a child or spouse, its seriousness or gravity is no bar to the Family Court’s initial jurisdiction. (See, e.g., People v. Johnson, 20 N Y 2d 220; People v. Pieters, 26 A D 2d 891; Matter of Seymour v. Seymour, 56 Misc 2d 546, 547.)
     