Opinion
December 5, 1983
Appeal from an order of disposition of the Family Court, Kings County (Esquirol, J.), dated August 16, 1982, which, upon a fact-finding determination (Huttner, J.), found that Lamont J., had committed acts which, if done by an adult, would constitute the crimes of attempted robbery in the first degree and assault in the first degree, adjudicated him a juvenile delinquent and placed him with the Division for Youth.
Order of disposition and fact-finding determination reversed, on the law and the facts, without costs or disbursements, and petition dismissed. The hearing court expressly "credited" appellant's alibi witness and "believe[d] her testimony", which placed him in her company four blocks from the crime scene from 2:08 P.M. to 5:00 P.M. on the day in question. Nonetheless, it rejected the alibi defense because it found that the incident did not take place within that time frame. Review of the record indicates, however, that there is no evidentiary support for the latter finding. The petition itself states that the crime took place at about 2:30 P.M., a fact corroborated by the complainant. In addition a 911 computer tape printout indicated that at 2:14 P.M. a telephone call was received advising that there was an "assault in progress" at the location in question. It is axiomatic that when a defense of alibi is raised, the People have the obligation of proving beyond a reasonable doubt that the defendant was present at the scene of the crime at the time of its commission and was not somewhere else (Penal Law, § 25.00; Matter of Robert K., 88 A.D.2d 874, 875; People v. Daniels, 88 A.D.2d 392, 403; People v. Grant, 84 A.D.2d 793). Inasmuch as the court credited and accepted the alibi witness' testimony and there is no evidence that the crime occurred at a time other than when appellant was in her company, the People have not met their burden of proof and the petition must be dismissed ( Matter of Robert K., supra). Titone, J.P., Gibbons, O'Connor and Rubin, JJ., concur.