People v. Melito

195 A.D.2d 1014, 601 N.Y.S.2d 745

Opinion

Judgment unanimously reversed on the law and new trial granted. Memorandum: In charging the jury on reasonable doubt, the court informed the jury, inter alia, that "[i]t is a doubt which leaves your mind in such a state of suspense that you are unable to say that you are convinced, to a moral certainty, of defendant’s guilt”. The error in the charge deprived defendant of his Fifth Amendment right to a verdict of guilt beyond a reasonable doubt that cannot be excused under the harmless error rule (see, Sullivan v Louisiana, 508 US —, 124 L Ed 2d 182; Cage v Louisiana, 498 US 39).

We have examined defendant’s other contentions and find them to be without merit. (Appeal from Judgment of Ontario County Court, Henry, Jr., J.—Burglary, 3rd Degree.) Present —Callahan, J. P., Green, Lawton, Fallon and Boehm, JJ.