Judgment unanimously reversed on the law and new trial granted. Memorandum: Defendant's conviction of conspiracy in the second and fifth degrees must be reversed because "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" (People v. LaPlanche, 193 A.D.2d 1062, 1062-1063; see also, Sullivan v. Louisiana, 508 US ___, 124 L Ed 2d 182; People v. Melito, 195 A.D.2d 1014 [decided herewith]; People v. Banks, 193 A.D.2d 1051; People v. Freeman, 193 A.D.2d 1117; People v. Payne, 182 A.D.2d 841; People v. Frank, 186 A.D.2d 977).
Because we are granting defendant a new trial, we need not address the merits of the Sandoval contention. County Court properly denied defendant's motion to dismiss the indictment based upon a claim of protracted preindictment delay. The court did not abuse its discretion in denying defendant's motion for severance and ordering a joint trial with separate juries. Defendant failed to preserve his repugnancy claim for review. All other issues raised by defendant are without merit.