Opinion
October 1, 1993
Appeal from the Niagara County Court, Hannigan, J.
Present — Green, J.P., Balio, Fallon, Doerr and Boehm, JJ.
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 "[r]easonable 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 A.D.2d 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 N.Y.2d 633, 635; People v. Sneed, 193 A.D.2d 1139; People v. Jackson, 167 A.D.2d 893, 894).
In view of our determination, we do not address defendant's remaining contentions.