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 and new trial granted on count two of indictment. Memorandum: Defendant was found guilty of the crime of manslaughter in the first degree under count two of the indictment and acquitted of murder in the second degree under count one. The trial court improperly reduced the People's burden of proof when it charged the jury that "it is possible to establish the guilt of a defendant charged with a crime to a reasonable degree of certainty. To that degree of proof, the People must be held" (see, People v. Freeman, 193 A.D.2d 1117; People v. Payne, 192 A.D.2d 1117; People v. Frank, 186 A.D.2d 977). The error in the charge deprived defendant of his Fifth Amendment right to a verdict of guilt beyond a reasonable doubt. We, therefore, reverse defendant's conviction (see, Sullivan v Louisiana, 508 US ___, 113 S Ct 2078; Cage v. Louisiana, 498 U.S. 39; see also, People v. Melito, 195 A.D.2d 1014).
We have considered defendant's other contentions and find them to be without merit.