opinion of the court

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed and indictment dismissed. The trial court’s failure to honor defense counsel’s timely request for a charge that the People bear the burden of proving each and every element of the crime charged beyond a reasonable doubt requires reversal (People v Newman, 46 NY2d 126).

Concur: Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer. Taking no part: Judge Gabrielli.

October 7, 1982

On the court’s own motion, remittitur recalled and, when returned, it will be amended to read as follows: On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order reversed and indictment dismissed. The trial court’s failure to honor defense counsel’s timely request for a charge that the People bear the burden of proving each and every element of the crime charged beyond a reasonable doubt requires reversal (People v Newman, 46 NY2d 126). Because defendant was convicted of a lesser included offense, the indictment must be dismissed (People v Mayo, 48 NY2d 245).