Opinion
Decided September 10, 1987
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Joseph Levine, J.
Philip L. Weinstein and Ann Cypher for appellant.
Elizabeth Holtzman, District Attorney (Robert E. Lesser of counsel), for respondent.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order reversed and a new trial ordered. This jury instruction concerning the alibi defense "was not satisfactory without the additional requested warning that the People had the entire burden of disproving the alibi beyond a reasonable doubt" (People v Victor, 62 N.Y.2d 374, 378).
Concur: Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, HANCOCK, JR., and BELLACOSA. Taking no part: Judge TITONE.