Opinion
November 24, 1986
Appeal from the County Court, Dutchess County (Fromer, J.).
Ordered that the judgment is reversed, as a matter of discretion in the interest of justice, and a new trial is ordered.
The complete failure of the trial court to instruct the jury with respect to the evaluation of the identification evidence presented (see, People v Whalen, 59 N.Y.2d 273; People v McKenzie, 97 A.D.2d 774; People v Daniels, 88 A.D.2d 392), and its similar total neglect to charge the jury as to the defendant's alibi defense (see, People v Vera, 94 A.D.2d 728) mandate reversal, despite the fact that the errors were not preserved for appellate review. Mollen, P.J., Brown, Niehoff and Kooper, JJ., concur.