Opinion
May 6, 1971
Order, Family Court of the State of New York, Bronx County, entered on or about August 19, 1969, unanimously reversed on the law, without costs and without disbursements, the sodomy charge is dismissed, and the matter remitted to the Family Court for a new hearing with respect to the charge of attempted robbery alleged in the petition and on the question of appellant's probationary status. The delinquency adjudication based on a finding of sodomy is insufficient as a matter of law. The record does not contain any testimony of the act. Nor is there any corroboration of the complaining witness' testimony, such as it is. Section 130.15 Penal of the Penal Law requiring corroboration of the victim's testimony is applicable to juvenile delinquency proceedings in the Family Court ( Matter of Eric R., 34 A.D.2d 402). Furthermore, the fact finding determination and the order of adjudication and disposition were based upon a "preponderance of evidence" standard of proof pursuant to then governing subdivision (b) of section 744 FCT of the Family Court Act. Subsequent to the adjudication at bar, the United States Supreme Court held the "preponderance of evidence test" under subdivision (b) of section 744 unconstitutional and that delinquency must be proved beyond a reasonable doubt (see Matter of Winship, 397 U.S. 358). We have held that the Winship ruling is to be applied retroactively to cases which were within the appellate process, as this one was, when Winship was decided ( Matter of Ivan V., 35 A.D.2d 806). Consequently there must be a new hearing and adjudication based on a proper constitutional standard.
Concur — McGivern, J.P., Nunez, McNally, Steuer and Eager, JJ.