*1 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department 487

KA 09-00588

PRESENT: SCUDDER, P.J., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

V MEMORANDUM AND ORDER ORLANDO LUGO-ROSADO, DEFENDANT-APPELLANT.

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR RESPONDENT. 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; People v Towndrow , 187 AD2d 194, 195-196, lv dismissed 81 NY2d 1021; People v Geddes , 186 AD2d 993; see generally Victor v Nebraska , 511 US 1, 5, reh denied 511 US 1101; Sullivan v Louisiana , 508 US 275, 280-281). In light of our determination, we need not address defendant’s remaining contentions.

Entered: April 29, 2011 Patricia L. Morgan

Clerk of the Court