Order reversed, without costs, and matter remitted to the Appellate Division for determination of questions of fact raised in that court (CPLR 5612, subd. [a]; 5613) in the following memorandum: We adhere to our prior decisions holding that In re Winship (397 U. S. 358) will not be applied retroactively (Matter of D. [Daniel], 27 N Y 2d 90, 96; Matter of Richard S., 27 N Y 2d 802).

Concur: Judges Scileppi, Bergan, Jasen and Gibson. Chief Judge Fuld concurs in the following memorandum in which Judge Burke concurs: Although I still adhere to the view— expressed in dissent in Matter of D. (Daniel) (27 N Y 2d 90, 98) —that the decision in In re Winship (397 U. S. 358) should be given retroactive application in cases still in the course of the ordinary appellate process, I am constrained, by the court’s holding in that ease, to vote for reversal. Judge Bbeitel dis*585sents and votes to affirm on the ground that, regardless of what standard of proof is applied, the record, in view of the victim’s wavering identification of the alleged delinquent, does not support, as a matter of law, an adjudication of delinquency.

Order reversed, etc.