People v. Lugo-Rosado

Appeal from a judgment of the Onondaga County Court (Patrick J. Cunningham, J.), rendered August 9, 1991. The judgment convicted defendant, upon a jury verdict, of conspiracy in the second degree.

It is hereby ordered that the judgment so appealed from is unanimously reversed on the law and a new trial is granted on count four of the indictment.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of conspiracy in the second degree (Penal Law § 105.15). We agree with defendant that reversal is required. County Court’s instructions to the jury on reasonable doubt unconstitutionally diminished the People’s burden of proof, and defendant was thereby deprived of a fair trial (see People v Docen-Perez, 197 AD2d 865 [1993]; People v Towndrow, 187 AD2d 194, 195-196 [1993], lv dismissed 81 NY2d 1021 [1993] ; People v Geddes, 186 AD2d 993 [1992]; see generally Victor v Nebraska, 511 US 1, 5 [1994], reh denied 511 US 1101 [1994] ; Sullivan v Louisiana, 508 US 275, 280-281 [1993]). In light of our determination, we need not address defendant’s remaining contentions. Present—Scudder, P.J., Fahey, Carni, Sconiers and Martoche, JJ.