Opinion
June 10, 1985
Appeal from the Supreme Court, Queens County (Dubin, J.).
Judgment reversed, on the law, and new trial ordered.
In its charge to the jury, the court said that alibi testimony is a strong defense "if you believe it". This language could have misled the jury into thinking that it must have been convinced of the alibi's truth before the alibi could serve as a basis for acquittal. "[W]hile not erroneous on its face * * * [it] may have conveyed to the jury, not accustomed to digesting rules of law", that the defendant had some burden of proving his alibi ( People v. Victor, 62 N.Y.2d 374, 378; People v. Negroni, 109 A.D.2d 756). In addition, the court failed to explicitly charge, despite defendant's request to do so, that the People have the burden of disproving an alibi beyond a reasonable doubt ( People v. Victor, supra, p 378). As with the virtually identical alibi charge in People v. Negroni ( supra), the charge did not adequately convey the correct burden to the jury.
Since only a single witness' identification linked defendant to the crime and several witnesses testified to an alibi for defendant, we cannot deem this error harmless ( People v. Lee, 110 A.D.2d 913; People v. Chestnut, 99 A.D.2d 515).
Accordingly, the judgment must be reversed and a new trial ordered. Mollen, P.J., Niehoff, Rubin and Lawrence, JJ., concur.