Opinion
February 2, 1996
Appeal from the Jefferson County Court, Clary, J.
Present — Green, J.P., Lawton, Fallon, Callahan and Doerr, JJ.
Judgment unanimously reversed on the law and new trial granted. Memorandum: County Court's charge to the jury that "a reasonable doubt must be a substantial doubt" is erroneous and denied defendant due process of law (see, People v. Moore, 216 A.D.2d 902, rearg denied 221 A.D.2d 1029). Because there must be a retrial, we reach defendant's alternative arguments. We agree with defendant that the court erred in denying defendant's request that it charge that the People bore the burden of disproving the alibi defense beyond a reasonable doubt (see, People v. Victor, 62 N.Y.2d 374, 377-378) and further erred in charging that, "if the alibi testimony presented creates a reasonable doubt in your mind as to whether defendant is the person who committed the crimes alleged, you must find him not guilty" (see, People v. Victor, supra, at 378; People v Jackson, 167 A.D.2d 893; People v. Munson, 138 A.D.2d 530; People v. Lee, 110 A.D.2d 913, 914). That language can be interpreted as shifting the burden to defendant to prove that he did not commit the crime, and we conclude that the charge as a whole failed to convey the proper standard to the jury (cf., People v. Smythe, 210 A.D.2d 949, 950, lv denied 85 N.Y.2d 943).
Finally, we conclude that the court did not err in permitting defendant's wife to testify to statements defendant made to her prior to the crimes. The statements conveyed threats and were not prompted by the affection, confidence and loyalty engendered by the marital relationship (see, People v. Edwards, 151 A.D.2d 987, lv denied 74 N.Y.2d 808).