
    (June 22, 1976)
    In the Matter of Mitchell M., Appellant.
   On the court’s own motion, its decision and order, both dated June 1, 1976, are vacated and recalled, and the following substituted decision is rendered: Appeal from an order of disposition of the Family Court, Kings County, dated January 5, 1976, which, upon a fact-finding determination dated November 17, 1975, and made after a hearing, inter alia, that appellant had done an act which, if done by an adult, would have constituted the crime of attempted murder, placed him with the Department of Correction for a maximum term of three years. The appeal brings up for review the said fact-finding determination. Fact-finding determination modified, on the law, by deleting therefrom the adjudication that the acts in question would have constituted the crime of attempted murder, and substituting therefor an adjudication that such acts would have constituted the crime of assault in the first degree. As so modified, determination affirmed. The findings of fact are affirmed. Order of disposition reversed, on the law, and proceeding remitted to the Family Court for a new dispositional hearing. No costs or disbursements are awarded. The facts as found by the Family Court fail to establish all elements of the crime of attempted murder. They are, however, sufficient to constitute the crime of assault in the first degree, which crime was also charged in the petition. As the crime of assault in the first degree is a class C felony, a new dispositional hearing is required (see Family Ct Act, § 758, subd [b]). Gulotta, P. J., Hopkins, Martuscello, Latham and Shapiro, JJ., concur.  