91 A.D.2d 562, People v. Contes

Citation:91 A.D.2d 562, 457 N.Y.S.2d 45
Party Name:People v. Contes
Case Date:December 21, 1982
Court:New York Supreme Court Appelate Division, First Department
 
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Page 562

91 A.D.2d 562

457 N.Y.S.2d 45

The PEOPLE of the State of New York, Respondent,

v.

Joseph CONTES, Defendant-Appellant.

Supreme Court of New York, First Department

December 21, 1982.

M.A. Katz, New York City, for respondent.

A.C. Fine, Rochester, for defendant-appellant.

Before SULLIVAN, J.P., and CARRO, SILVERMAN and MILONAS, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, Bronx County, rendered November 12, 1980 convicting defendant, on jury verdict, of robbery in the first degree, PL § 160.15, and sentencing him thereon, is affirmed.

The issue on which our dissenting brother differs from us is the sufficiency of the court's charge to the jury as to the defendant's alibi. The language of the charge on this point is set forth in the dissent.

The claim of error is essentially that this language in part shifts to the defendant the burden of proof on the issue of alibi whereas the People have the burden of disproving this defense, like every other issue in the case except affirmative defenses, beyond a reasonable doubt (PL § 25.00).

We note first that there was no objection to the charge or any request for further instructions on this point. In People v. Thomas, 50 N.Y.2d 467, 472, 429 N.Y.S.2d 584, 407 N.E.2d 430, the Court of Appeals said:

[W]hen a court's specific instructions on the burden of proof properly place the burden on the People, a claim that a portion of the charge could, in the particular case, be interpreted as having a contrary effect, does not come within the narrow exception to the rule that objections to the charge must be made at trial where the potential error can be corrected or avoided ...

People v. Jones, 74 A.D.2d 515, 516, 425 N.Y.S.2d 5, holding to the contrary was decided before the Court of Appeals' decision in People v. Thomas, supra.

Further, the charge here involved differs in important respects from the criticized charge in the cases cited in the dissent. In each of those cases the court said that the jury "must be satisfied as to the [457 N.Y.S.2d 46] truth" of the alibi. People v. Jones, supra; People v. Velazquez, 77 A.D.2d 845, 846, 431 N.Y.S.2d 37; People v. Lediard, 80 A.D.2d 237, 241, 438 N.Y.S.2d 540; People v. Acevedo, 83 A.D.2d 813, 442 N.Y.S.2d 56. In the present case, the court imposed no requirement that the jury must be satisfied as to the truth of the alibi, but instead the court phrased it in terms of "if you, the jury, tend to believe the evidence," etc. This is considerably less than a requirement that the jury be satisfied that the alibi is true; it goes little further than to say, if the jury is not prepared to reject the alibi evidence entirely, that in itself is sufficient to raise a reasonable doubt. But the trial judge went even further. He instructed the jury what to do even if they did not believe the alibi evidence. He said:

However, if you do not believe the alibi evidence, this does not mean that you should convict the defendant. Before you can convict the defendant, you...

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