
    The People of the State of New York, Appellant, v. James Donaldson, Respondent. The People of the State of New York, Respondent, v. Paul Riley, Appellant. The People of the State of New York, Appellant, v. Tony Harris, Respondent.
    Argued June 2, 1969;
    decided June 12, 1969.
    
      
      Frank S. Hogan, District Attorney of New York County (Michael R. Juviler, Lewis R. Friedman and Bennett L. Gershman of counsel), for appellant in first above-entitled action.
    A person who has reliably been found by a Judge to be a narcotic addict, after a hearing conducted prior to People v. Fuller, is not entitled to another hearing before a jury on the same issue. (People v. Fuller, 24 N Y 2d 292; Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U. S. 358; DeStefano, v. Woods, 392 U. S. 631; Stovall v. Denno, 388 U. S. 293; Miranda v. Arizona, 384 U. S. 436; People v. McQueen, 18 N Y 2d 337; Berger v. New York, 388 U. S. 41; People v. Morhouse, 21 N Y 2d 66; United States of Amer. ex rel. Almeida v. Rundle, 383 F. 2d 421, 393 U. S. 863; Warring v. Colpoys, 122 F. 2d 642, 314 U. S. 678.)
    
      William E. Hellerstein, Milton Adler and Carol Berkman for respondent in first above-entitled action.
    I. The decision of the Appellate Term reversing respondent’s conviction in accordance with this court’s decision in People v. Fuller was correct in all .respects. The prospective limitation of Fuller urged by the People would itself deny respondent due process and equal protection of the law. (Baxstrom v. Herold, 383 U. S. 107; People v. Lally, 19 N Y 2d 27; Chicot County Drainage Dist. v. Baxter State Bank, 308 U. S. 371; United States of Amer. ex rel. Durocher v. LaVallee, 330 F. 2d 303; Stovall v. Denno, 388 U. S. 293; Duncan v. Louisiana, 391 U. S. 145; Olmstead v. United States, 277 U. S. 438; Katz v. United States, 389 U. S. 347; Desist v. United States, 394 U. S. 244; People ex rel. Cadogan v. McMann, 24 N Y 2d 233.)
    
      
      William E. Hellerstein, Milton Adler and Carol Berkman for appellant in the second above-entitled action.
    Appellant, whose application for leave to appeal was pending before a Judge of this court when People v. Fuller was decided, is entitled to a jury trial on the issue of his addiction. The argument set forth in Point I of respondent’s brief in People v. Donaldson is adopted in full.
    
      Eugene Gold, District Attorney of Kings County (Raymond J. Scanlan and Harry Brodbar of counsel), for respondent in second above-entitled action.
    In the light of the impracticability of applying retroactively, even with respect to pending appeals, the principle enunciated in People v. Fuller—that a defendant convicted of crime is entitled to a jury trial upon the issue of his addiction to narcotics, as in civil proceedings — such mandate should be applied prospectively only, in accordance with sound judicial precedents. We respectfully invite the attention of this court to the presentation of these issues by the District Attorney of New York County in a brief for appellant in the companion case of People v. Donaldson.
    
    
      Burton B. Roberts, District Attorney of Bronx County (Barry L. Mendelson of counsel), for appellant in third above-entitled action.
    I. Jury trials should be granted to alleged narcotic addicts in accordance with People v. Fuller as of April 10, 1969, the date it was decided. II. Defendant’s addiction was proved to a legal sufficiency by a fair preponderance of the credible evidence.
    
      Joel A. Reiss for respondent in third above-entitled action.
    I. The holding of this court in People v. Fuller that in failing to accord convicted addict jury trial on issue of his addiction, the statute violates the equal protection clause of the Fourteenth Amendment, should be given retroactive effect. II. At the hearing held below, the State failed to prove by a preponderence of evidence that defendant-appellant is an “ addict ”.
   Burke, J.

These three cases require a determination as to whether our recent decision in People v. Fuller (24 N Y 2d 292 [decided April 10, 1969]) should be applied only prospectively to addiction hearings held after the date of its decision or whether it should be applied retroactively to those criminal addicts ” whose hearings took place prior to ¡that decision and without an opportunity for a jury trial. We conclude that Fuller should be given retroactive effect.

In each of the three cases before us, the defendant was convicted upon his plea of guilty to a violation of section 220.05 of the Penal Law (criminal possession of a dangerous drug in the fourth degree) and a hearing pursuant to section 208 of the Mental Hygiene Law was held before a Judge sitting without a jury.- In each case, .the defendant was certified an addict and committed to the custody of the Narcotic Addiction Control Commission. On Donaldson’s appeal, the Appellate Term, First Departtihent, reversed the judgment and remitted the matter to the Criminal Court of the City of New York, New York County, for further proceedings in light of People v. Fuller. On Harris’ appeal, the Appellate Division, First Department, modified the judgment and remitted the matter to the Supreme Court, Bronx County, for a jury trial on the issue of his addiction. On Riley’s appeal, the Appellate Term, Second and Eleventh Districts, affirmed the judgment of the Criminal Court of the City of New York, Bangs County. In both the Donaldson and the Harris cases, the People appeal pursuant to permission granted by a Judge of this court and seek to have Fuller applied only prospectively.

Basic .to the resolution of this retroactivity issue is an understanding of the precise, holding in Fuller and the grounds upon which that holding was predicated. Fuller specifically held that there was no rational basis for a distinction, as to the opportunity for a jury trial, between criminal ” and civil ” commitment for narcotic addicts and that, therefore, the denial of such an opportunity to the former, while expressly granting it to the latter, clearly violated the constitutional guarantee of the equal protection of .the laws. Furthermore, Fuller specifically rejected as a basis for a contrary conclusion the argument that the granting of the opportunity for such jury trials in criminal ” commitments would impose a heavy burden on the courts.

The People nonetheless argue that..the hearings held in these pre-Fuller oases before a Judge sitting without a jury were fairly conducted, that the retroactive application of Fuller would impose severe additional burdens on the courts and, finally, that law enforcement officials and courts relied upon a -statute which was presumptively constitutional. None of these arguments, however, is sufficient to overcome the considerations militating towards the retroactive application of the Fuller decision.

. Fuller declared no new constitutional right, devised no new criminal procedure and did not strike down any prior decision giving apparent constitutional sanction, to the procedure there found unconstitutional. It merely enunciated, in relation to the narcotic addiction commitment statute, the ineluctable conclusion to be drawn from the opinion of the United States Supreme Court in Baxstrom v. Herold (383 U. S. 107 [decided Feb. 23, 1966]) and the opinion of' this court in People v. Lolly -(19 N Y 2d 27 [decided Dec. 30, 1966]), both of which antedated the April 1,1967 effective date of the sections of the Mental Hygiene Law involved in Fuller and in the present cases. Thus, the People’s reliance on Stovall v. Denno (388 U. S. 293) is misplaced since, in that case, the court specifically noted that its decisions in United States v. Wade .(388 U. S. 218) and Gilbert v. California (388 U. S. 263) “were not'foreshadowed in our cases ” and that “ law enf orcement officials of the Federal Government and of all 50 States have heretofore proceeded on the premise that the Constitution did not require the presence of counsel at pretrial confrontations for identification.” (388 U. S., at p. 299.) Here, however, both Baxstrom and Lolly {supra) clearly “ foreshadowed ” our decision in Fuller and the mere fact that the section which violated the equal protection principles enunciated in those cases was passed by the Legislature cannot serve to insulate from /the holding of Fuller .those persons whose commitment resulted from a hearing which fortuitously took place prior to this court’s declaration that the denial of an opportunity for a jury trial constituted a deprivation of the equal protection of the laws. The same analysis applies to such cases as De Stef ano v. Woods (392 U. S. 631 [holding Duncan v. Louisiana, 391 U. S. 145, nonretroactive]) -and Desist v. United States (394 U. >S. 244 [holding Katz v. United States, 389 U. S. 247, nonretroactive]). Thus, objection to the retroactive application of Fuller may not realistically be predicated upon, any claimed reliance since existing decisional law with respect to the requirement of the equal protection of the laws clearly indicated the statute’s constitutional deficiency. Finally, Fuller in no way impugned the “fairness” of hearings con-, ducted by á Judge sitting without a jury and the fairness of hearings so held is irrelevant to the question whether the constitutional right recognized and applied in Fuller should be accorded to all those concededly deprived of that right prior to the decision in Fuller. We, therefore, hold that the opportunity for a jury trial on the issue of addiction, required by the decision in Fuller, should be accorded full retroactive effect.

Accordingly, in People v. Donaldson, the order of the Appellate Term, First Department, as limited by its Per Curiam opinion, should be affirmed. In People v. Harris, the order of the Appellate Division, First Department, should be affirmed. In People v. Riley, the judgment of the Appellate Term, Second and Eleventh Judicial Districts, should be reversed and the matter remitted to the Criminal Court of the City of New York, Kings County, for further proceedings in accordance with the opinion herein and the opinion in People v. Fuller.

Chief Judge Fuld and Judges Scileppi, Bergan, Breitel and Jasen concur.

In People v. Donaldson: Order affirmed.

In People v. Harris: Order affirmed.

In People v. Riley: Judgment reversed and case remitted to the Criminal Court of the City of New York for further proceedings in accordance with the opinion herein and the opinion in People v. Fuller (24 N Y 2d 292 [decided April 10, 1969]). 
      
      . The retroactive application of Fuller imposes no greater burden on the courts than did our decision in People v. Bailey (21 N Y 2d 588, 597) and imposes a far smaller burden than did the decision in Baxstrom v. Herold (383 U. S. 107).
     