Opinion
Argued June 8, 1971
Decided July 6, 1971
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, ALPHONSE P. GUARDINO, J.
J. Lee Rankin, Corporation Counsel ( Stanley Buchsbaum and Jesse J. Fine of counsel), for appellant.
Rena K. Uviller, Charles Schinitsky and William E. Hellerstein for respondent.
Order reversed, without costs, and matter remitted to the Appellate Division for determination of questions of fact raised in that court (CPLR 5612, subd. [a]; 5613) in the following memorandum: We adhere to our prior decisions holding that In re Winship ( 397 U.S. 358) will not be applied retroactively ( Matter of D. [ Daniel], 27 N.Y.2d 90, 96; Matter of Richard S., 27 N.Y.2d 802).
Concur: Judges SCILEPPI, BERGAN, JASEN and GIBSON. Chief Judge FULD concurs in the following memorandum in which Judge BURKE concurs: Although I still adhere to the view — expressed in dissent in Matter of D. ( Daniel) ( 27 N.Y.2d 90, 98) — that the decision in In re Winship ( 397 U.S. 358) should be given retroactive application in cases still in the course of the ordinary appellate process, I am constrained, by the court's holding in that case, to vote for reversal. Judge BREITEL dissents and votes to affirm on the ground that, regardless of what standard of proof is applied, the record, in view of the victim's wavering identification of the alleged delinquent, does not support, as a matter of law, an adjudication of delinquency.
Order reversed, etc.