           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
