Opinion
July 13, 1981
Appeal by defendant from a judgment of the Supreme Court, Queens County (Naro, J.), rendered April 20, 1978, convicting him of robbery in the second degree (two counts) and grand larceny in the third degree, upon a jury verdict, and imposing sentence. Judgment reversed, as a matter of discretion in the interest of justice, and new trial ordered. The trial court's charge as to the alibi defense was improper as it served to place the burden upon the defendant to prove the truth of his alibi (see People v Lee, 80 A.D.2d 905; People v. Jones, 74 A.D.2d 515; People v Griswold, 72 A.D.2d 778). "A defendant does not have to prove the truth of his alibi in any way" (People v. Griswold, supra, p 778). Furthermore, the court's statement that the alibi evidence should be "carefully scrutinized" was misleading, since no similar admonition was contained in the court's charge on the issue of identification (see People v. Fludd, 68 A.D.2d 409). We have considered defendant's remaining contentions and find them to be without merit. Gulotta, J.P., Cohalan, O'Connor and Thompson, JJ., concur.