Opinion
April 2, 1984
Appeal by defendant from a judgment of the Supreme Court, Kings County (Clemente, J.), rendered May 14, 1982, convicting him of robbery in the first degree, robbery in the second degree, assault in the second degree, grand larceny in the third degree and criminal possession of a weapon in the fourth 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 alibi charge given in this case failed to adequately explain to the jury that, even if they disbelieved the defense, the People still had the burden of proving defendant's guilt beyond a reasonable doubt. Since the identification testimony was far from overwhelming, the interest of justice warrants a new trial ( People v Vera, 94 A.D.2d 728; cf. People v Gonzalez, 97 A.D.2d 423). We also note that while the court's instructions on identification were legally sufficient (see People v Whalen, 59 N.Y.2d 273), a more expansive instruction on the subject should be given upon the retrial (see, e.g., People v Knowell, 94 A.D.2d 255, 258-259; People v Rothaar, 75 A.D.2d 652; People v Gardner, 59 A.D.2d 913). Titone, J.P., O'Connor, Brown and Eiber, JJ., concur.