Opinion
December 23, 1994
Appeal from the Niagara County Court, Hannigan, J.
Present — Balio, J.P., Lawton, Fallon, Wesley and Doerr, JJ.
Judgment unanimously reversed on the law and new trial granted. Memorandum: In its instructions to the jury on reasonable doubt, County Court used the phrases "reasonably certain" and "reasonable degree of certainty" when defining the degree of proof to which the People must be held. We have previously held that that language effectively reduces the People's burden of proof, thereby depriving defendant of a fair trial (see, People v Guiteau, 204 A.D.2d 1035, lv denied 84 N.Y.2d 868; People v Bradley, 201 A.D.2d 914). In light of our determination, it is unnecessary to address defendant's remaining arguments for a new trial. We agree with the determination of the hearing court that, under the circumstances, defendant's statement to the police was voluntary and was not obtained in violation of defendant's right to counsel.