(dissenting.) The majority opinion adheres to a legal fiction which was embraced in order to aid persons whose ages were being determined and to prevent hardship or loss to such persons. I do not perceive the reasons why this legal fiction should be perpetuated in a situation which invites a reasonable departure from the rule. The majority holds that the defendant was 16 years of age on the day before his 16th birthday. The obvious consequence of its holding is —not to aid the defendant— but to deprive him of the advantages of being treated in the Family Court where special rehabilitative procedures are available, and to thrust him as a fully mature and adult criminal before the court of general criminal jurisdiction.
The irony of the rule that places defendant in his difficulty is that it is based on an exception. Time measurements generally count and include the terminal day in the period under consideration (see, e.g., H. E. & S. Transp. Corp. v. Checker Cab Sales Corp., 271 N. Y. 239; General Construction Law, § 20). The legal fiction applied here excludes that day and justifies such computation by counting the actual day of birth (5 ALR 2d 1143). The latter citation points out that the fiction has been criticized.
The most cogent and significant reason for not following the fiction in the present case is the countervailing rule that criminal statutes must be “ strictly construed against the party seeking their enforcement and in favor of the person being proceeded against ” (People v. O’Neill, 208 Misc. 24, 25; McKinney’s Cons. Laws of N. Y., Book 1, Statutes, § 271). While the Family Court Act section at issue here (§ 712) is not strictly a penal or criminal statute, it very much affiects the jurisdiction and treatment of criminal acts and offenders; in that respect it ought to be construed most favorably toward “ the person proceeded against ”, particularly since the very purpose of the statute was to aid “ persons less than sixteen years of age.”
I am confident that the common understanding of the said section 712 of the Family Court Act is that it means the birth date itself shall control, not some artificial arrangement resulting in the day before the birth date. I am not able to agree, despite the seriousness of the crime charged, that defendant should be treated as a fully mature adult merely because of the application of a legal fiction.
*477Beldock, P. J., Ughbtta and Hopkins, JJ., concur with Hill, J.; Christ, J., dissents and votes to dismiss the indictment and to remand the appellant to the Family Court for appropriate proceedings, in a separate opinion.
Judgment affirmed.