Opinion
May 17, 1971
Appeal from an order of the Family Court, Queens County, dated January 26, 1970, which inter alia adjudicated that appellant is a person in need of supervision. Order reversed, on the law, without costs, and new trial granted. No questions of fact have been considered on this appeal. This case, which was in the appellate process when the Supreme Court of the United States decided Matter of Winship ( 397 U.S. 358), should be tried in accordance with the rule enunciated in that case as to the standard of proof, i.e., that an adjudication against appellant must rest upon evidence beyond a reasonable doubt ( Matter of Ronald H., 35 A.D.2d 845). At such retrial, the complaining witness should not be permitted to make an identification of appellant unless sufficient be shown to establish that such identification is not tainted by the improper show-up ( United States v. Wade, 388 U.S. 218; Gilbert v. California, 388 U.S. 263). Rabin, P.J., Hopkins, Munder, Martuscello and Shapiro, JJ., concur.