LUGO-ROSADO, ORLANDO, PEOPLE v

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 DocenPerez, 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