Opinion
December 15, 1986
Appeal from the Supreme Court, Kings County (Miller, J.).
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.
During the redirect examination of the police officer who arrested the defendant, the prosecutor twice elicited, through a lengthy series of questions, that after his arrest the defendant did not elaborate on the details of the cursory alibi statement which he had previously given to that officer. This was error. In People v. Dawson ( 50 N.Y.2d 311, 320) the Court of Appeals reaffirmed the rule set out in People v. Rutigliano ( 261 N.Y. 103, 107), that the People are entirely precluded from using the defendant's silence while in custody as evidence-in-chief at his trial because he is then under no duty to speak. When questioned after his arrest, a defendant is under no obligation to say anything or to lay out an alibi (see, People v. Christman, 23 N.Y.2d 429). Since the defendant did not take the stand, the principle enunciated in People v. Conyers ( 52 N.Y.2d 454), and People v. Savage ( 50 N.Y.2d 673), that a defendant's pretrial silence may be admissible to impeach the defendant where unusual circumstances are present, is inapplicable. As the proof of the defendant's guilt was not overwhelming, this error cannot be considered harmless.
Although no objection was made to the alibi charge, it erroneously failed to state that the People had the burden of disproving the defendant's alibi beyond a reasonable doubt (see, People v. Victor, 62 N.Y.2d 374; People v. McLaughlin, 104 A.D.2d 829). In addition, a portion of the charge which indicated that only the defense witnesses could be considered interested witnesses was improper. The question of whether a witness is interested, and the effect that may have on the witness's testimony is for the jury, and is applicable to any witness (see, 1 CJI [NY] 7.03; People v. Gerdvine, 210 N.Y. 184; People v. Manning, 278 N.Y. 40; People v. Jackson, 80 A.D.2d 904). Bracken, J.P., Niehoff, Eiber and Sullivan, JJ., concur.