Opinion
February 4, 1994
Appeal from the Niagara County Court, Hannigan, J.
Present — Callahan, J.P., Pine, Fallon, Doerr and Davis, JJ.
Judgment unanimously reversed on the law and new trial granted. Memorandum: Defendant's conviction for murder in the second degree and conspiracy 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 (see, People v. Brinson, 195 A.D.2d 966; People v LaPlanche, 193 A.D.2d 1062, lv denied 82 N.Y.2d 756).
There is no merit to the contention that the combination of pre-indictment and post-indictment delay denied defendant his constitutional right to a speedy trial. Although the passage of 4 1/2 years between the homicide and the trial is a significant period of time, neither defendant's liberty nor defense was compromised by the delay (see, People v. Taranovich, 37 N.Y.2d 442, 445; People v. Martinez [appeal No. 1], 187 A.D.2d 992, lv denied 81 N.Y.2d 888). This Court previously has determined that the 2 1/2 year period between the homicide and the indictment did not deprive a codefendant of due process and that the People had satisfied their burden of showing good cause for the delay (see, People v. Brinson, supra). Upon our review of the record, we conclude that the two-year period between the indictment and trial, in combination with the pre-indictment delay, did not deny defendant due process.
We have examined defendant's remaining contentions and find them to be without merit.