Opinion
November 30, 1970
Appeal from an order of the Family Court, Kings County, entered September 9, 1969, which inter alia adjudicated that appellant was a juvenile delinquent. Order reversed, on the law, without costs, and proceeding remitted to the Family Court for a new trial to determine, by the proof-standard of evidence beyond a reasonable doubt, whether appellant is such a delinquent. The questions of fact have not been considered. Respondent's contention that the order under review is not appealable as a matter of right is incorrect (cf. Matter of Reidout, 26 A.D.2d 780; Matter of John M., 28 A.D.2d 963; Matter of Richard K., N YL.J., Sept. 23, 1970, p. 2, col. 4). In the Matter of Herko ( 280 App. Div. 994) this court dismissed, as nonappealable as a matter of right, an appeal from an order inter alia adjudicating an infant to be a juvenile delinquent. However, in Herko, decided under the Domestic Relations Law then controlling juvenile delinquency proceedings, the order not only adjudicated the infant to be a juvenile delinquent but additionally remanded the infant for psychiatric examination and adjourned the proceeding to a later date pending the receipt of the psychiatric report. Here we do not have such a situation. In Matter of Winship ( 397 U.S. 358) the Supreme Court of the United States held that the standard of proof to be applied by the New York Family Court before an infant is adjudicated a juvenile delinquent is proof beyond a reasonable doubt. In this case the Family Court found, under the then existing law, that a preponderance of the evidence established that appellant had committed arson, which act would have been a crime if committed by an adult, and that therefore appellant should be adjudicated to be a juvenile delinquent. In our view the determination of the Supreme Court in Winship ( supra) should be given retroactive effect to this case, since it was in the appellate process when Winship was determined by the Supreme Court (cf. Richard S. v. City of New York, 397 U.S. 597). In our view the language of the Court of Appeals in Matter of D. ( Daniel) ( 27 N.Y.2d 90, 96), asserting that retroactivity should not be given to Winship, because the effect thereof would be to disturb "countless" juvenile delinquency adjudications, should not be deemed to apply to juvenile delinquency adjudications antedating Winship where the juvenile delinquency adjudication was not final and in the course of appellate review when Winship was decided by the Supreme Court. The number of juvenile delinquency proceedings in the process of appellate review when Winship was decided by the Supreme Court is not "countless". Christ, P.J., Latham, Kleinfeld, Brennan and Benjamin, JJ., concur.