Appellate Division of the Supreme Court of the State of New York May 7, 1981 (People v. McCloud)

Mikoll, J.,

dissents and votes to reverse in the following memorandum. Mikoll, J. (dissenting). I respectfully dissent. In its charge to the jury, the *928trial court, in the process of instructing on lesser included offenses, erroneously misstated the law by stating in pertinent part: “If you find on the basis of the believable evidence and beyond a reasonable doubt that the defendant is not