Opinion
November 16, 1981
Appeal by defendant from a judgment of the Supreme Court, Kings County (Rigler, J.), rendered March 16, 1979, convicting him of attempted rape in the first degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. The trial court refused defendant's request to instruct the jury that the People had the burden of disproving defendant's alibi defense beyond a reasonable doubt. In fact, the alibi charge that was given tended to negate this responsibility and to shift the burden of proof on this issue to defendant. The People have the burden of disproving an alibi defense beyond a reasonable doubt. A jury charge that dilutes this burden or suggests that a defendant has the burden of establishing the defense constitutes reversible error. (People v. Jones, 74 A.D.2d 515; People v. Fludd, 68 A.D.2d 409.) Accordingly, a new trial is warranted. Titone, J.P., Mangano, Gibbons and Thompson, JJ., concur.