Submitted September 14, 1970
Decided October 8, 1970
Motion for reargument of motion for leave to appeal [ 25 N.Y.2d 741] granted and, upon reargument, motion for leave to appeal granted and the title of the proceeding amended to show that Richard S. was alleged to be "a Person in Need of Supervision". Motion for summary reversal on consent granted, the order reversed and the proceeding dismissed, in a memorandum.
Judges BURKE, SCILEPPI, BERGAN, BREITEL, JASEN and GIBSON concur in the following memorandum; Chief Judge FULD concurs in result.
MEMORANDUM. Upon remand from the Supreme Court of the United States ( 397 U.S. 597) the motion for reargument of motion for leave to appeal should be granted and, upon reargument, the motion for leave to appeal should be granted.
We hold that proof beyond a reasonable doubt is constitutionally required for an adjudication that a minor is a person in need of supervision (see In re Winship, 397 U.S. 358). Inasmuch as proof in the instant case was merely by a preponderance of the evidence, the motion for summary reversal on consent should be granted, the order reversed and the proceeding dismissed. In so doing we adhere to our decision in Matter of D. ( Daniel) ( 27 N.Y.2d 90) that Winship will not be applied retroactively.