We concur in the result for all of the reasons set forth in the majority opinion, but would add one more.
During the court’s charge on the defendant’s presumption of innocence and the People’s burden of1 proof, the jury was told: “If after carefully considering the evidence as the result of reason and judgment and because of the evidence in the case or lack of evidence, you feel in your hearts and conscience that these defendants did not do the things charged against them under the law as explained to you, or if you entertain a reasonable doubt as to their guilt, then there exists a reasonable doubt, and you should give the defendants the benefit of that doubt -and acquit.” (Emphasis added.)
We recently criticized the employment of the italicized phrase (see People v. Harding, 44 A D 2d 800). Such instruction not only serves to confuse the jurors rather than assist them “in understanding the difference between a reasonable doubt and one which is based on a whim, sympathy or some other vague reason ” (People v. Jones, 27 N Y 2d 222, 227); it is also an improper dilution of the term “ beyond a reasonable doubt” and, therefore, clearly prejudicial to a defendant.
MoGtvern, P. J., Lupiano and Mackeh, JJ., concur in revised Per Curiam opinion. Murphy, J., concurs in an opinion; *365Markewich, J., concurs in the opinion of Murphy, J., and in a separate opinion concurs in the result only in the revised Per Curiam opinion.
Judgment, Supreme Court, New York County, rendered on November 8, 1973, unanimously reversed, on the law and a "new trial directed.
Motion for reargument granted, and on reargument the original Per Curiam opinion and the order of this court entered on July 9, 1974 on Appeal No. 821 are recalled and vacated and a resettled order substituted therefor.