Opinion
March 23, 1971
Order, Family Court of the State of New York, New York County, entered on August 14, 1969, unanimously reversed, on the law, and the petition dismissed. The findings of a Family Court Judge in the instant proceeding were based upon a preponderance of the evidence which was the prevailing standard at the time of trial. However, we have since decided that Matter of Winship ( 397 U.S. 358) which held that a finding of guilt in a delinquency proceeding must rest upon proof beyond a reasonable doubt, "should be retroactively applied to all cases still in the appellate process." ( Matter of Ivan V., 35 A.D.2d 806; Matter of Ronald H., 35 A.D.2d 845.) "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.) The order of adjudication was based upon a finding that appellant had committed acts which if done by an adult would have constituted the crime of grand larceny in the third degree. The sole witness against appellant was the complainant, a New York City Housing Authority policeman, who testified merely that he saw appellant snatch a woman's pocketbook and run. The officer made immediate chase and caught appellant. However, the appellant was not found with the purse. Inexplicably, the officer testified that "the woman recovered the purse and disappeared." This would tend to cast doubt upon the efficacy of the testimony that the boy took the bag and ran off with it. In this posture of the case, and considering the fact that the alleged victim of the crime did not testify, we find that guilt was not established beyond a reasonable doubt.
Concur — Capozzoli, J.P., McGivern, Markewich, Kupferman and Tilzer, JJ.