Opinion
April 7, 1975
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered April 19, 1967, convicting her of the crime of abortion, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and indictment dismissed. The appeal raised no questions of fact and none have been considered. The trial court, in instructing the jury on the issue of alibi defenses, stated, "If, after carefully analyzing the evidence given in behalf of the defendant, you come to the conclusion that it is false and that it has been interposed here intentionally as a false defense, such a finding of fact by you may be considered as a circumstance bearing on the guilt of the defendant if, in your judgment, it may fairly be inferred that she has thereby betrayed a certain consciousness of her guilt." This charge, which instructed the jury that it could draw an inference of guilt from its disbelief of the alibi witness, constituted prejudicial and reversible error (People v Leasure, 34 A.D.2d 688). Since defendant's sentence has been served, no useful purpose can be served by remanding the case for a retrial. The indictment should therefore be dismissed. Hopkins, Acting P.J., Latham, Cohalan, Brennan and Munder, JJ., concur.