People v. Lewis

CourtNew York Court of Appeals
Writing for the CourtPER CURIAM; FULD; FULD
Citation29 N.Y.2d 923,279 N.E.2d 856,329 N.Y.S.2d 100
Parties, 279 N.E.2d 856 The PEOPLE of the State of New York, Respondent, v. Carlton Earl LEWIS, Appellant.
Decision Date13 January 1972

Page 100

329 N.Y.S.2d 100
29 N.Y.2d 923, 279 N.E.2d 856
The PEOPLE of the State of New York, Respondent,
v.
Carlton Earl LEWIS, Appellant.
Court of Appeals of New York.
Jan. 13, 1972.

Page 101

[279 N.E.2d 857] [29 N.Y.2d 924] I. Walter Gross, Schenectady, for appellant.

Robert H. Ecker, Dist. Atty., for respondent.

PER CURIAM.

Reaching the issue, left open by our decision in People v. Nuernberger, 25 N.Y.2d 179, 182, 303 N.Y.S.2d 74, 76, 250 N.E.2d 352, 353, 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, 273 N.Y.S.2d 321, 324; People ex rel. Doty v. Krueger, 58 Misc.2d 428, 295 N.Y.S.2d 581, affd. 32 A.D.2d 845, 302 N.Y.S.2d 605, app. dismd. 26 N.Y.2d 881, 309 N.Y.S.2d 932, 258 N.E.2d 215).

The order appealed from should be affirmed.

FULD, Chief Judge (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 threats of violence. A reading of the statute, having in mind what I deem the intent of the Legislature, leads me to conclude that a father, [29 N.Y.2d 925] 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, 303 N.Y.S.2d 74, 76, 250 N.E.2d 352, 353

Page 102

(per Fuld, Ch. J., and Bergan, J., dissenting); Matter of Ruth S. v. George S., 63 Misc.2d 1, 311 N.Y.S.2d 169.) 1

Although, ordinarily, I would dissent, I prefer...

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40 practice notes
  • Smith v. Troyan, Nos. 73-2226
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 3, 1975
    ...Rights v. New York-Pennsylvania Professional Baseball League, 36 A.D.2d 364, 320 N.Y.S.2d 788, aff'd, 29 N.Y.2d 921, 329 N.Y.S.2d 99, 279 N.E.2d 856 (1972) (baseball umpire), and Moore v. City of Des Moines Police Dep't, 2 CCH Empl.Prac.Guide P 5184 (CP No. 881, Iowa Civil Rights Comm'n, fi......
  • State Division of Human Rights on Complaint of Freeman v. Xerox Corp.
    • United States
    • New York Supreme Court Appellate Division
    • July 18, 1975
    ...Rights v. New York-Pennsylvania Professional Baseball League, 36 A.D.2d 364, 320 N.Y.S.2d 788, affd. 29 N.Y.2d 921, 329 N.Y.S.2d 99, 279 N.E.2d 856; State Div. of Human Rights v. N.Y.C. Dept. of Parks & Recreation, 38 A.D.2d 25, 326 N.Y.S.2d 640 (involving arbitrary physical standards);......
  • City of Schenectady v. State Division of Human Rights
    • United States
    • New York Court of Appeals
    • July 8, 1975
    ...v. New York-Pennsylvania Professional Baseball League, 36 A.D.2d 364, 367, 320 N.Y.S.2d 788, 790, affd. 29 N.Y.2d 921, 329 N.Y.S.2d 99, 279 N.E.2d 856). Here, respondents have submitted no evidence justifying the conclusion that a female police officer, by virtue of her sex, is unqualified ......
  • Board of Ed. of Union Free School Dist. No. 2, East Williston, Town of North Hempstead, Nassau County v. New York State Division of Human Rights
    • United States
    • New York Supreme Court Appellate Division
    • June 25, 1973
    ...Rights v. New York-Pennsylvania Professional Baseball League, 36 A.D.2d 364, 320 N.Y.S.2d 788, affd. 29 N.Y.2d 921, 329 N.Y.S.2d 99, 279 N.E.2d 856; Weeks v. Southern Bell Tel. & Tel. Co., 5 Cir., 408 F.2d 228). Gender as a source of such differentiation is neutralized and the statute i......
  • Request a trial to view additional results
40 cases
  • Smith v. Troyan, Nos. 73-2226
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 3, 1975
    ...Rights v. New York-Pennsylvania Professional Baseball League, 36 A.D.2d 364, 320 N.Y.S.2d 788, aff'd, 29 N.Y.2d 921, 329 N.Y.S.2d 99, 279 N.E.2d 856 (1972) (baseball umpire), and Moore v. City of Des Moines Police Dep't, 2 CCH Empl.Prac.Guide P 5184 (CP No. 881, Iowa Civil Rights Comm'n, fi......
  • State Division of Human Rights on Complaint of Freeman v. Xerox Corp.
    • United States
    • New York Supreme Court Appellate Division
    • July 18, 1975
    ...Rights v. New York-Pennsylvania Professional Baseball League, 36 A.D.2d 364, 320 N.Y.S.2d 788, affd. 29 N.Y.2d 921, 329 N.Y.S.2d 99, 279 N.E.2d 856; State Div. of Human Rights v. N.Y.C. Dept. of Parks & Recreation, 38 A.D.2d 25, 326 N.Y.S.2d 640 (involving arbitrary physical standards);......
  • City of Schenectady v. State Division of Human Rights
    • United States
    • New York Court of Appeals
    • July 8, 1975
    ...v. New York-Pennsylvania Professional Baseball League, 36 A.D.2d 364, 367, 320 N.Y.S.2d 788, 790, affd. 29 N.Y.2d 921, 329 N.Y.S.2d 99, 279 N.E.2d 856). Here, respondents have submitted no evidence justifying the conclusion that a female police officer, by virtue of her sex, is unqualified ......
  • Board of Ed. of Union Free School Dist. No. 2, East Williston, Town of North Hempstead, Nassau County v. New York State Division of Human Rights
    • United States
    • New York Supreme Court Appellate Division
    • June 25, 1973
    ...Rights v. New York-Pennsylvania Professional Baseball League, 36 A.D.2d 364, 320 N.Y.S.2d 788, affd. 29 N.Y.2d 921, 329 N.Y.S.2d 99, 279 N.E.2d 856; Weeks v. Southern Bell Tel. & Tel. Co., 5 Cir., 408 F.2d 228). Gender as a source of such differentiation is neutralized and the statute i......
  • Request a trial to view additional results

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