People v. Rudd

100 A.D.2d 857, 474 N.Y.S.2d 103, 1984 N.Y. App. Div. LEXIS 17971

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 2, 1984
• Status: Published

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County (Clemente, J.), rendered May 14, 1982, convicting him of robbery in the first degree, robbery in the second degree, assault in the second degree, grand larceny in the third degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence. H Judgment reversed, as a matter of discretion in the interest of justice, and new trial ordered. 11 The alibi charge given in this case failed to adequately explain to the jury that, even if they disbelieved the defense, the People still had the burden of proving defendant’s guilt beyond a reasonable doubt. Since the identification testimony was far from overwhelming, the interest of justice warrants a new trial {People v Vera, 94 AD2d 728; cf. People v Gonzalez, 97 AD2d 423). We also note that while the court’s instructions on identification were legally sufficient (see People v Whalen, 59 NY2d 273), a more expansive instruction on the subject should be given upon the retrial (see, e.g., People v Knowell, 94 AD2d 255, 258-259; People v Rothaar, 75 AD2d 652; People v Gardner, 59 AD2d 913). Titone, J. P., O’Connor, Brown and Eiber, JJ., concur.