People v. Wright

86 A.D.2d 968, 448 N.Y.S.2d 293, 1982 N.Y. App. Div. LEXIS 15668

Opinion

Judgment unanimously reversed, on the law, and a new trial granted. Memorandum: It was reversible error for the court, in the absence of independent proof of fabrication, to instruct the jury that it could consider as some evidence of guilt a possible false alibi (People v Russell, 266 NY 147; People v Abdul-Malik, 61 AD2d 657, 661; People v Cright, 47 AD2d 906; People v Leasure, 34 AD2d 688; Richardson, Evidence [10th ed], § 167). Since a new trial is required, we note that the instruction that a person intends the natural and probable consequences of his act, although not objected to, was erroneous (Sandstrom v Montana, 442 US 510). On the new trial, the District Attorney, before cross-examining the alibi witness concerning her failure to come forward to authorities, should lay the foundation set forth in People v Dawson (50 NY2d 311). We have considered the other points raised by defendant, including his claim that the identification testimony should have been suppressed, and find them to be without merit. (Appeal from judgment of Monroe County Court, Barr, J. — robbery, first degree.) Present — Dillon, P. J., Hancock, Jr., Callahan, Doerr and Boomer, JJ.