People v. Munson

138 A.D.2d 530, 526 N.Y.S.2d 36, 1988 N.Y. App. Div. LEXIS 2853

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Browne, J.), rendered March 2, 1984, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial ordered.

The court’s alibi charge was improper. The court did not unequivocally charge that the People had the burden to disprove the alibi defense beyond a reasonable doubt (see, People v Wintje, 68 NY2d 637; People v Victor, 62 NY2d 374). The court erroneously charged that "the alibi evidence which defendant has placed before you seeks to convince you” and "if the alibi proof raises a reasonable doubt”. Such phrases could be interpreted by the jury as shifting the burden of proof to the defendant (see, People v Lee, 110 AD2d 913; cf., People v Wintje, supra). Thus, viewing the charge in its entirety, we find that it was improper.

Although no objection was raised to the charge, we reach the issue because this is a " 'one witness identification case [where] the issue of the complainant’s credibility vis-á-vis that of the defense witnesses assume[s] paramount importance’ ” (People v Memminger, 126 AD2d 752, Iv denied 69 NY2d 953, quoting People v Watson, 111 AD2d 888; see, People v McFadden, 100 AD2d 520).

In light of our determination we do not reach the other issues raised by the defendant. Kunzeman, J. P., Eiber, Kooper and Harwood, JJ., concur.