Onondaga County Attorney, Petitioner-Appellant. v. << (2007)

We agree with petitioner that Family Court erred in summarily dismissing the petition on the ground that the allegations were legally insufficient as a matter of law.   The court erred in concluding that the wooden shelving unit with which the child struck her mother is not a “dangerous instrument” as a matter of law (Penal Law § 10.00[13];  see People v. Tedesco, 30 A.D.3d 1075, 816 N.Y.S.2d 269, lv. denied 7 N.Y.3d 818, 822 N.Y.S.2d 493, 855 N.E.2d 809;  see also People v. Pisciotta, 34 A.D.3d 389, 824 N.Y.S.2d 643).   The court also erred in refusing to conduct a hearing in order for the mother to testify regarding “physical injury” (§ 10.00[9] ), opting instead to ask its own questions of the mother, then deciding to dismiss the petition on its own motion based on the mother's unsworn responses.   We therefore reverse the order, reinstate the petition and remit the matter to Family Court for further proceedings on the petition before a different judge.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the petition is reinstated and the matter is remitted to Family Court, Onondaga County, for further proceedings on the petition.

MEMORANDUM: