Opinion
October 26, 1995
Appeal from the Supreme Court, Bronx County (Harold Silverman, J.).
Defendant told the detective who arrested him that he was in Chicago on the night of the murder and that he had used a plane ticket issued in another person's name to fly there. Two of defendant's prior attorneys mentioned in discussions with the prosecutor that defendant might interpose an alibi defense, but neither filed a formal alibi notice. During jury selection, new defense counsel announced in open court that there might be an alibi witness whom defendant had mentioned to one of his previous attorneys, but after speaking with defendant, he too declined to give formal notice. Defendant later testified at trial that he was at the scene and witnessed the murder. Since, on this record, the details of the alibi defense were not fairly attributable to defendant, the trial court erred in permitting the prosecutor to impeach him regarding his discussions with his attorneys concerning his alibi ( People v. Jones, 190 A.D.2d 31, 33; compare, People v. Shuff, 168 A.D.2d 348, lv denied 77 N.Y.2d 967). However, such error was harmless because the issue of defendant's alibi was properly raised through questions regarding his statements to the arresting officer, and because the evidence of defendant's guilt was overwhelming.
The court's accomplice charge, when viewed as a whole, "clearly advised the jury how to evaluate the corroborating evidence" ( People v. Prittler, 214 A.D.2d 311, 312, lv denied 86 N.Y.2d 739).
Concur — Sullivan, J.P., Rosenberger, Ross, Asch and Nardelli, JJ.