G., In re

• Decision Date: 15 November 1971
• Parties: In the Matter of Keith G. (Anonymous), A Person Alleged to be a Juvenile Delinquent, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 396

327 N.Y.S.2d 396

37 A.D.2d 971

In the Matter of Keith G. (Anonymous), A Person Alleged to

be a Juvenile Delinquent, Appellant.

Supreme Court, Appellate Division, Second Department.

Nov. 15, 1971.

Before MUNDER, Acting P.J., and MARTUSCELLO, SHAPIRO, GULOTTA and BENJAMIN, JJ.

MEMORANDUM BY THE COURT.

Motion by respondent (petitioner below) for reargument granted and, upon reargument, the decision and order of this court dated April 19, 1971 (Matter of G., 36 A.D.2d 843, 321 N.Y.S.2d 291) are recalled and vacated and the following new decision is rendered:

Appeal from an order of the Family Court, Kings County, dated January 15, 1969, and made after a fact-finding hearing, which adjudicated appellant a juvenile delinquent and placed him on probation for two years.

Order affirmed.

In view of the decision in Matter of V. v. City of New York, 29 N.Y.2d 583, 272 N.E.2d 895, 324 N.Y.S.2d 313, dec. July 6, 1971 we are constrained to hold that Matter of Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, insofar as that case mandated the reasonable doubt standard of proof for juvenile delinquency proceedings, is not to be applied retroactively to the instant case which was in the appellate process when Winship was decided.

We have considered and rejected appellant's other contentions. While we are of the opinion that petitioner had the burden at the hearing to show that any inculpatory statements to be introduced into evidence were voluntary and were obtained in accordance with the requirements of due process, by appellant's failure to make a specific objection upon appropriate grounds to the admission of such testimony the point has not been preserved for appellate review (People v. Ross, 21 N.Y.2d 258, 287 N.Y.S.2d 376, 234 N.E.2d 427).

MUNDER, Acting P.J., and MARTUSCELLO, SHAPIRO and GULOTTA, JJ., concur.

BENJAMIN, J., concurs in granting reargument and in recalling and vacating the decision and order of this court dated April 19, 1971, but otherwise dissents and votes to reverse the order of the Family Court and to dismiss the proceeding, with the following memorandum:

Keith G., a 15-year-old boy, was on January 15, 1969 adjudicated a juvenile delinquent because of an alleged violation of former subdivision 9 of section 240.35 of the Penal Law--loitering for the purpose of using drugs (the provision now is section 240.36). The sole proof of drug use was his admission to the police, at the station house, that 'he split half a bag'. The record does not disclose that the Miranda (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) warnings were given. Nor does it disclose that section 724 of the Family Court Act was complied with. ^*

In view of the silence of the record on these two vital points, petitioner did not sustain his burden of proving the voluntariness of the admission upon which this adjudication rests; and that admission should have been excluded from evidence (Matter of D., 30 A.D.2d 183, 290 N.Y.S.2d 935; Matter of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d...