People v. Frank

— Judgment unanimously reversed as a matter of discretion in the interest of justice and new trial granted. Memorandum: The trial court’s instructions to the jury on reasonable doubt incorrectly employed the phrases " 'morally and reasonably certain’ ” (People v Johnson, 145 AD2d 932 ; People v Hewlett, 133 AD2d 417 ) and " 'reasonable doubt must therefore be based entirely and absolutely on good *978 sound substantial reason’ ” (People v Johnson, supra, at 932 ; People v La Rosa, 112 AD2d 954 ; see also, People v Newell, 178 AD2d 959 ). Additionally, the trial court improperly instructed 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. If they fail to sustain that burden, the defendant is entitled to the benefit of a reasonable doubt and to acquittal” (emphasis supplied). We conclude that those instructions effectively reduced the People’s burden of proof and that the charge as a whole failed to convey the proper standard to the jury (see, Cage v Louisiana, 498 US 39 ; People v Newell, supra). As a result, defendant was deprived of a fair trial and we therefore as a matter of our discretion in the interest of justice (see, CPL 470.15 [6]) reverse the judgment of conviction and grant a new trial.

In view of our determination, we do not address defendant’s remaining contentions. (Appeal from Judgment of Niagara County Court, Hannigan, J. — Rape, 1st Degree.) Present— Boomer, J. P., Pine, Fallon, Davis and Doerr, JJ.