602 N.Y.S.2d 585 | N.Y. App. Div. | 1993
—Judgment unanimously reversed on the law, new trial granted on counts one and two of indictment and indictment otherwise dismissed without prejudice to the People to re-present any appropriate charges under count three of indictment to another Grand Jury. Memorandum: The trial court erred in instructing the jury that "[reasonable doubt must be based entirely and absolutely upon some good, sound, substantial reason” and that the People bore the burden of establishing guilt "to a reasonable degree of certainty” (see, People v Sosby, 197 AD2d 909 [decided herewith]). We reverse and grant a new trial on counts one and two of the indictment. Inasmuch as defendant was convicted of the lesser included offense of criminal possession of a weapon in the fourth degree under count three of the indictment, that count must be dismissed without prejudice to the People to re-present any appropriate charges under that count to another Grand Jury (see, People v Gonzalez, 61 NY2d 633, 635; People v Sneed, 193 AD2d 1139; People v Jackson, 167 AD2d 893, 894).
In view of our determination, we do not address defendant’s remaining contentions. (Appeal from Judgment of Niagara
