People v. Acevedo
| Decision Date | 20 August 1981 |
| Citation | 442 N.Y.S.2d 56,83 A.D.2d 813 |
| Parties | The PEOPLE of the State of New York, Respondent, v. James ACEVEDO, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
J. Shapiro, New York City, for respondent.
A. S. Axelrod, New York City, for defendant-appellant.
Before MURPHY, P. J., and KUPFERMAN, BIRNS, SANDLER and FEIN, JJ.
Judgment, Supreme Court, Bronx County, rendered December 12, 1977, convicting defendant after jury trial of two counts of robbery first degree and two counts of assault second degree, and sentencing him as a second felony offender to concurrent indeterminate terms of 5 to 10 years for each robbery conviction and 2 to 4 years for each assault conviction, is unanimously reversed on the law and the matter is remanded for a new trial.
Defendant is alleged to have participated in a gang assault on two victims, using belts and chains, thereafter running off with property belonging to the victims. Defendant interposed an alibi defense. The trial court properly noted, in its instruction to the jury, that the defendant was not obligated to establish his alibi beyond a reasonable doubt (see People v. Elmore, 277 N.Y. 397, 14 N.E.2d 451). However, the court went on to charge, over general objection, that the jurors "must, of course, be satisfied as to the truth of the alibi and it is for you, the jury, to determine whether or not the alibi should be believed, obviously, you could believe defendant was not there." In effect, this improperly shifted to defendant the People's constant burden to disprove the alibi defense beyond a reasonable doubt (People v. Velazquez, 77 A.D.2d 845, 431 N.Y.S.2d 37; People v. Jones, 74 A.D.2d 515, 425 N.Y.S.2d 5; Penal L., § 25.00, subd. 1). However remedial subsequent parts of the charge may have been, the clear implication for the jurors was that the burden was on defendant to establish the truth of his alibi, when in fact defendant should be entitled to an acquittal if the alibi merely raises a reasonable doubt as to his guilt (People v. Barbato, 254 N.Y. 170, 172 N.E. 458).
The prosecution presented two witnesses who placed defendant at the scene of the crime. Defendant did not take the stand to corroborate the testimony of his own alibi witness. This was because of a Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 ruling to permit a probing on cross examination of the underlying facts of a prior youthful offender adjudication, a case in...
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