The opinion
Henry, J.
(dissenting). When appellant appeared with his attorney in Family Court on March 13, 1969 to answer the petition dated January 29, 1969, charging him with .acts which if committed by an adult would be in violation of section 125.25 of the Penal Law constituting the crime of murder, the court, in response to a question asked by appellant’s attorney, correctly stated that on the allegations of the petition appellant could be committed to Elmira Beception Center for a period up to three *49 years. Appellant’s attorney thereupon requested an adjournment for the purpose of having a discussion with the court and the County Attorney. After the discussion the County Attorney stated: “ it is the recommendation of our office that a new petition be filed and this petition would be an allegation that Daniel Bichard * * * performed an act which if performed by an adult would be a Violation of Section 120.25 of the Penal Law of the State of New York, (reckless endangerment) It is further our recommendation that upon the appropriate arraignment of this Court and upon Bespondent being represented by counsel and by being properly advised by the Court, if he admits the allegations of the new petition that at that time I would move for dismissal of the old petition ’ ’.
The court received the new petition. It was read to appellant. The court then stated to appellant and his attorney “ you can admit or deny the petition.” Appellant’s attorney said, “ He admits the petition”. The court asked appellant, “Do you admit the allegations of the petition? ” and appellant answered, “Yes, your Honor”. The record shows, and appellant does not claim otherwise, that appellant’s answer to the new petition was voluntarily and under standingly made. He did not then, nor does he now, ask to withdraw or change his answer admitting the allegations. The order appealed from committed appellant to the New York State Agricultural and Industrial School at Industry for an indefinite period not to exceed three years.
The original petition charged acts which if committed by an adult would constitute a Class A felony (Penal Law, § 125.25). Upon an adjudication thereunder commitment could be to Elmira Beception Center (Family Ct. Act, § 758, subd. [b]), whereas under the new petition appellant could not be so committed. Appellant’s admission of the allegations of the new petition and his commitment should be sustained on the ground that it was sought by him and freely taken as part of a bargain which was struck for his benefit. (People v. Foster, 19 N Y 2d 150, 154.) Reversal is not required by our decision in People v. Sawyer (33 A D 2d 242), where we held that a youthful offender was entitled to a trial by jury notwithstanding his written consent to be tried without a jury, because his consent was extracted in an impermissible manner. He was required to consent to a nonjury trial as a prerequisite to consideration for adjudication as a youthful offender. In the case at bar no objection was made to the new petition. The answer admitting its allegations was voluntarily and understandingly made, and the allegations being admitted there was no issue to be tried.
The order should be affirmed.
*50 Goldman, P. J., Wither and Moule, JJ., concur with Gabrielli, J.; Henry, J., dissents and votes to affirm in opinion.
Motion to dismiss appeal denied. Order reversed on the law and facts and matter remitted to Onondaga County Family Court for further proceedings not inconsistent with the opinion by Gabrielli, J.