Opinion
November 5, 1973
In a proceeding to adjudge appellant to be a person in need of supervision, the appeal is from an order of the Family Court, Kings County, dated March 7, 1973 and made after a fact-finding determination, which ordered appellant placed with the Division for Youth (New York State Training School). Order reversed, without costs, on the law, and matter remitted to the Family Court for further proceedings not inconsistent herewith. In our opinion, the Court of Appeals' decision in Matter of Ellery C. ( 32 N.Y.2d 588) is retroactively applicable to persons in need of supervision who are currently confined in State training schools pursuant to orders made prior to that decision. (Cf. the retroactivity of the decision of the Supreme Court of United States in Furman v. Georgia, 408 U.S. 238, discussed in Robinson v. Neil, 409 U.S. 505.) Persons confined pursuant to such orders are entitled to remission of their cases to the Family Court for placement in suitable treatment programs. Rabin, P.J., Hopkins, Munder, Martuscello and Latham, JJ., concur.