Opinion
October 1, 1993
Appeal from the Niagara County Court, Hannigan, J.
Present — Green, J.P., Pine, Lawton, Fallon and Davis, JJ.
Judgment unanimously reversed on the law, new trial granted on counts one, four and seven of indictment and indictment otherwise dismissed without prejudice to the People to re-present any appropriate charges under count six of indictment to another Grand Jury. Memorandum: Defendant's conviction of kidnapping in the second degree, rape in the first degree, sexual abuse in the first degree, assault in the third degree and unauthorized use of a motor vehicle in the third degree must be reversed because "County Court's instructions to the jury on reasonable doubt unconstitutionally diminished the People's burden of proof and deprived defendant of a fair trial" (People v. LaPlanche, 193 A.D.2d 1062, 1062-1063; see also, Sullivan v. Louisiana, 508 US ___, 113 S Ct 2078; People v. Brinson, 195 A.D.2d 966; People v Frank, 186 A.D.2d 977). Inasmuch as defendant was convicted of the lesser included offense of assault in the third degree under count six of the indictment, that count is dismissed without prejudice to the People to re-present any appropriate charges under that count to another Grand Jury (see, People v. Gonzalez, 61 N.Y.2d 633, 635; People v. Grant, 197 A.D.2d 910 [decided herewith]). A new trial is granted on counts one, four and seven of the indictment.
Additionally, the evidence that defendant struck the victim in the chest was legally insufficient to sustain the People's burden of proof on the charge of sexual abuse in the first degree (see, People v. Teicher, 52 N.Y.2d 638; People v. Shealy, 51 N.Y.2d 933). Thus, count five of the indictment must be dismissed.