Opinion
October 1, 1993
Appeal from the Niagara County Court, Hannigan, J.
Present — Denman, P.J., Green, Lawton, Fallon and Boehm, JJ.
Judgment unanimously reversed on the law, new trial granted on count four of indictment and count three of indictment dismissed without prejudice to the People to re-present any appropriate charges under count three of indictment to another Grand Jury. Memorandum: Reversal is mandated by the trial court's charge on reasonable doubt (see, People v. Sosby, 197 A.D.2d 909 [decided herewith]). Inasmuch as defendant was convicted of the lesser included offense of robbery in the third degree under count three 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 count four of the indictment.