
    The People of the State of New York, Respondent, v Joseph Brinson, Jr., Appellant.
    [601 NYS2d 890]
   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 AD2d 1062, 1062-1063; see also, Sullivan v Louisiana, 508 US —, 124 L Ed 2d 182; People v Melito, 195 AD2d 1014 [decided herewith]; People v Banks, 193 AD2d 1051; People v Freeman, 193 AD2d 1117; People v Payne, 182 AD2d 841; People v Frank, 186 AD2d 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. (Appeal from Judgment of Niagara County Court, Hannigan, J.—Conspiracy, 2nd Degree.) Present—Callahan, J. P., Green, Pine, Fallon and Davis, JJ.  