PEOPLE v. PAYNE

Judgment unanimously reversed as a matter of discretion in the interest of justice and new trial granted. Memorandum: Defendant and a codefendant Vernon Frank were jointly charged with rape in the first degree (Penal Law § 130.35; § 20.00), robbery in the second degree (Penal Law § 160.10; § 20.00) and grand larceny in the fourth degree (Penal Law § 155.30; § 20.00). The charges arose out of the forcible rape and robbery of a woman on June 23, 1990 in the City of Niagara Falls. Defendant was convicted, following a jury trial, of rape and robbery. Vernon Frank, who was tried separately, was similarly convicted. In October 1992, this Court unanimously reversed Frank's conviction as a matter of discretion in the interest of justice and granted him a new trial because of County Court's erroneous instructions to the jury on reasonable doubt (People v Frank, 160 A.D.2d 977). Our decision in Frank is dispositive of this appeal because County Court used the same erroneous instructions on reasonable doubt. As a result, defendant was deprived of a fair trial (People v Frank, supra).