Opinion
May 28, 1993
Appeal from the Niagara County Court, Hannigan, J.
Present — Denman, P.J., Balio, Lawton, Fallon and Davis, JJ.
Judgment unanimously reversed as a matter of discretion in the interest of justice, new trial granted on counts two, six, seven and eight of indictment and indictment otherwise dismissed without prejudice to the People to re-present any appropriate charges to another Grand Jury. Memorandum: In its instructions to the jury on reasonable doubt, County Court incorrectly used the phrase "morally and reasonably certain" (see, People v Frank, 186 A.D.2d 977) and improperly instructed the jury that "it is possible to establish the guilt of a defendant charged with a crime to a reasonable degree of certainty. To that degree of proof, the People must be held. If they fail to sustain that burden, then the defendant is entitled to the benefit of a reasonable doubt and to acquittal" (see, People v Payne, 192 A.D.2d 1117; People v Frank, supra). Because County Court's instructions on reasonable doubt effectively reduced the People's burden of proof, and thereby deprived defendant of a fair trial, we reverse defendant's conviction as a matter of discretion in the interest of justice (see, CPL 470.15) and grant a new trial on counts two, six, seven and eight of the indictment (see, CPL 470.15; People v Payne, supra; People v Frank, supra). Inasmuch as defendant was convicted of the lesser included offenses of criminal trespass in the second degree under counts one and four of the indictment, those counts must be dismissed without prejudice to the People to re-present any appropriate charges to another Grand Jury (see, People v Gonzalez, 61 N.Y.2d 633, 635).