People v. Young

115 A.D.2d 574, 496 N.Y.S.2d 89, 1985 N.Y. App. Div. LEXIS 54995

Opinion

Appeal by defendant from a judgment of the Supreme Court, Westchester County (Martin, J.), rendered October 12, 1983, convicting him of burglary in the third degree and grand larceny in the third degree, upon a jury verdict, and imposing sentence.

Judgment reversed, on the law, count one of the indictment charging defendant with burglary in the first degree dismissed, without prejudice to the People to re-present any appropriate charges to another Grand Jury (People v Beslanovics, 57 NY2d 726), and a new trial ordered on counts three and six, charging defendant with grand larceny in the third degree and petit larceny, respectively. The facts have been considered and determined to be established.

The instructions to the jury tended to indicate the defendant bore some burden of establishing the truth of his alibi. The jury should have been charged, as requested, that the People have the burden of disproving an alibi beyond a reasonable doubt (see, People v Victor, 62 NY2d 374; People v Knowell, 94 AD2d 255).

We have reviewed the other contentions raised by defendant and find them to be without merit. Mangano, J. P., Rubin, Eiber and Hooper, JJ., concur.