PEOPLE v. FRANK

Judgment unanimously reversed as a matter of discretion in the interest of justice and new trial granted. Memorandum: The trial court's instructions to the jury on reasonable doubt incorrectly employed the phrases "`morally and reasonably certain'" (People v Johnson, 145 A.D.2d 932; People v Hewlett, 133 A.D.2d 417) and "`reasonable doubt must therefore be based entirely and absolutely on good sound substantial reason'" (People v Johnson, supra, at 932; People v La Rosa, 112 A.D.2d 954; see also, People v Newell, 178 A.D.2d 959). Additionally, the trial court improperly instructed the jury that "it is possible to establish the guilt of a defendant charged with a crime to a reasonable degree of certainty. To that degree of proof the People must be held. If they fail to sustain that burden, the defendant is entitled to the benefit of a reasonable doubt and to acquittal" (emphasis supplied). We conclude that those instructions effectively reduced the People's burden of proof and that the charge as a whole failed to convey the proper standard to the jury (see, Cage v Louisiana, 498 U.S. 39; People v Newell, supra). As a result, defendant was deprived of a fair trial and we therefore as a matter of our discretion in the interest of justice (see, CPL 470.15) reverse the judgment of conviction and grant a new trial.

In view of our determination, we do not address defendant's remaining contentions.