Opinion
February 21, 1995
Appeal from the Supreme Court, Queens County (Browne, J.).
Ordered that the judgment is reversed, as a matter of discretion in the interest of justice, and a new trial is ordered.
Once again, Justice Browne's alibi charge was improper. Justice Browne did not clearly convey to the jury that the People bear the burden of disproving an alibi defense beyond a reasonable doubt (see, People v. King, 200 A.D.2d 765; People v Munson, 138 A.D.2d 530; People v. English, 126 A.D.2d 738; People v. La Rosa, 112 A.D.2d 954). Justice Browne again erroneously charged the jury that the alibi evidence "which the defendant placed before you, seeks to convince you that the [defendant was] elsewhere at the time, and therefore, could not have possibly committed the [acts charged]", and again used the phrase "if the alibi raises a reasonable doubt" (see, People v. Munson, 138 A.D.2d, at 530, supra). These phrases improperly shifted the burden of proof to the defendant and the defendant was deprived of her right to a fair trial.
Although the defendant did not object to the alibi charge, we have reached this issue in the exercise of our interest of justice jurisdiction (see, People v. Munson, supra).
In light of this determination, the other issues raised by the defendant need not be reached. Miller, J.P., Thompson, Santucci and Joy, JJ., concur.