Opinion
November 24, 1970
Order of disposition and determination of delinquency of the Family Court, Bronx County, entered on January 6, 1970, unanimously reversed, on the law, and the petition dismissed. In Matter of Winship ( 397 U.S. 358) the Supreme Court of the United States held that subdivision (b) of section 744 FCT of the Family Court Act was unconstitutional and that a finding of guilt in a delinquency proceeding must rest upon proof beyond a reasonable doubt. This is a constitutional right. The findings of the Family Court Judge in the instant proceeding were based upon the then prevailing preponderance of evidence standard rather than the reasonable doubt rule, as urged by appellant's counsel in that court. "Reviewing the adjudication of juvenile delinquency in the light of the law as it presently exists ( People v. Loria, 10 N.Y.2d 368, 371), the order is reversed and the petition dismissed". ( Matter of Arthur M., 34 A.D.2d 761.) Winship ( supra) should be retroactively applied to all cases still in the appellate process. (See Matter of Richard S., 27 N.Y.2d 802, dismissing proceeding pursuant to remand from United States Supreme Court in the light of Winship, supra.)
Concur — Eager, J.P., Capozzoli, McGivern and Tilzer, JJ.