Summary
In People v Moore (216 AD2d 902, lv denied 87 NY2d 905) and People v Branch (224 AD2d 926, lv denied 87 NY2d 1017), this Court agreed with that contention, reversed the conviction and granted a new trial in reliance on Cage v Louisiana (498 US 39, 40). Subsequent to those rulings, this Court reviewed a similar charge by that court in light of Victor v Nebraska (511 US 1; see, People v Paris, 229 AD2d 926).
Summary of this case from People v. FishOpinion
June 9, 1995
Present — Pine, J.P., Lawton, Wesley, Callahan and Boehm, JJ.
Appeal from the Jefferson County Court, Clary, J.
Judgment unanimously reversed on the law, new trial granted on count five of indictment and indictment otherwise dismissed without prejudice to the People to re-present any appropriate charges to another Grand Jury. Memorandum: Defendant was charged in an indictment with three counts of murder in the second degree (Penal Law § 125.25 [intentional murder]; § 125.25 [depraved indifference murder]; § 125.25 [4] [depraved indifference murder of a child less than 11 years old]), making a punishable false written statement (Penal Law § 210.45) and endangering the welfare of a child (Penal Law § 260.10). The jury found defendant not guilty of the murder charges, but convicted him of the lesser included offense of manslaughter in the second degree as well as endangering the welfare of a child. The verdict is not against the weight of the evidence (see, People v. Bleakley, 69 N.Y.2d 490, 495). The People proved the cause of death of the child beyond a reasonable doubt.
We agree with the contention of defendant that he was deprived of his due process rights when County Court instructed the jury that "a reasonable doubt must be a substantial doubt" (see, Cage v. Louisiana, 498 U.S. 39, 40). The court's instruction on reasonable doubt could have been interpreted by a reasonable juror to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause (see, Cage v Louisiana, supra, at 41; see also, People v. Miller, 194 A.D.2d 230).
Inasmuch as defendant was convicted of the lesser included offense of manslaughter in the second degree under the murder counts of the indictment, all counts of the indictment except the endangering the welfare of a child count must be dismissed without prejudice to the People to re-present any appropriate charges to another Grand Jury (see, People v. Gonzalez, 61 N.Y.2d 633, 635; People v. Grant, 197 A.D.2d 910, lv denied 82 N.Y.2d 895; People v. Sneed, 193 A.D.2d 1139).
In view of our determination, we need not address the remaining contentions raised on appeal.