Opinion
Decided September 2, 1982 October 7, 1982.
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, FARRELL, J.
William E. Hellerstein and Lynn W.L. Fahey for appellant.
John J. Santucci, District Attorney ( Michael J. Connolly of counsel), for respondent.
On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [g]), order reversed and indictment dismissed. The trial court's failure to honor defense counsel's timely request for a charge that the People bear the burden of proving each and every element of the crime charged beyond a reasonable doubt requires reversal ( People v Newman, 46 N.Y.2d 126).
Concur: Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG and MEYER. Taking no part: Judge GABRIELLI.
October 7, 1982
On the court's own motion, remittitur recalled and, when returned, it will be amended to read as follows: On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [g]), order reversed and indictment dismissed. The trial court's failure to honor defense counsel's timely request for a charge that the People bear the burden of proving each and every element of the crime charged beyond a reasonable doubt requires reversal ( People v Newman, 46 N.Y.2d 126). Because defendant was convicted of a lesser included offense, the indictment must be dismissed ( People v Mayo, 48 N.Y.2d 245).