Opinion
November 13, 1979
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered August 8, 1978, convicting him of robbery in the second degree and burglary in the first degree, upon a jury verdict, and imposing sentence. Judgment reversed, as a matter of discretion in the interest of justice, and new trial ordered. In its charge to the jury on alibi, the court stated: "Evidence with relation to alibi should be most carefully scrutinized if the defendant's guilt is not established beyond a reasonable doubt. By reason of the truth of his alibi you must acquit him. The defendant is not required to prove alibi beyond a reasonable doubt, but you must be satisfied of the truth of the alibi." This language impermissibly served to place the burden on defendant to prove his alibi (see People v Chestnut, 42 A.D.2d 594). A defendant does not have to prove the truth of his alibi in any way. Moreover, the court suggested to the jury that reasonable doubt was not sufficient grounds for an acquittal in its statement that scrutiny should be applied to an alibi even in the absence of reasonable doubt. Notwithstanding defendant's failure to object to the charge, the interest of justice requires that a new trial be ordered. Hopkins, J.P., Damiani, Titone and Mangano, JJ., concur.