Opinion
May 28, 1993
Appeal from the Niagara County Court, Hannigan, J.
Present — Callahan, J.P., Green, Lawton, Doerr and Boehm, JJ.
Judgment unanimously reversed as a matter of discretion in the interest of justice and new trial granted. Memorandum: The evidence, viewed in the light most favorable to the People (see, People v Contes, 60 N.Y.2d 620), was sufficient to support the conviction and the verdict was not contrary to the weight of the evidence (see, People v Bleakley, 69 N.Y.2d 490, 495).
However, County Court's instructions to the jury on reasonable doubt unconstitutionally diminished the People's burden of proof and deprived defendant of a fair trial (see, People v Banks, 193 A.D.2d 1051 [decided herewith]; People v Freeman, 193 A.D.2d 1117 [decided herewith]; People v Payne, 192 A.D.2d 1117; People v Frank, 186 A.D.2d 977).
Since a new trial is necessary, we note that, on the evidence in this record, the court erred in denying defendant's request for a circumstantial evidence charge (see, People v Silva, 69 N.Y.2d 858, 859; People v Ford, 66 N.Y.2d 428; People v Sanchez, 61 N.Y.2d 1022).
The court properly permitted defendant's wife to testify concerning the time her husband arrived home on the morning of May 14, 1987, as well as her discovery of a duffel bag and its contents later that day, because those observations were not "'communications'" protected by the marital privilege (People v Wilson, 64 N.Y.2d 634, 636). With respect to the other "communications" that took place over a period of approximately six months to a year, we conclude that, although those communications were presumably privileged when made (see, CPLR 4502 [b]), the privilege was lost because the substance of those communications was revealed to a third party (see, Matter of Vanderbilt [Rosner — Hickey], 57 N.Y.2d 66, 74).