People v. Chestnut
| Decision Date | 16 January 1984 |
| Citation | 470 N.Y.S.2d 685,99 A.D.2d 515 |
| Parties | The PEOPLE, etc., Respondent, v. Cleon CHESTNUT, Appellant. |
| Court | New York Supreme Court — Appellate Division |
William E. Hellerstein, New York City (Karen Goldstein, New York City, of counsel), for appellant.
John J. Santucci, Dist. Atty., Kew Gardens (Thelma Lee, Kew Gardens, of counsel), for respondent.
Before GIBBONS, J.P., and BRACKEN, NIEHOFF and RUBIN, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered November 1, 1979, convicting him of burglary in the third degree and petit larceny, upon a jury verdict, and imposing sentence.
Judgment reversed, as a matter of discretion in the interest of justice, and new trial ordered on the present indictment solely with respect to the count of burglary in the third degree, and indictment otherwise dismissed without prejudice to the People to re-present any appropriate charges to another Grand Jury (see People v. Beslanovics, 57 N.Y.2d 726, 454 N.Y.S.2d 976, 440 N.E.2d 1322).
Defendant was found guilty of charges stemming from the July 20, 1978 burglary of an apartment from which a stereo and a jar of coins was taken. The only eyewitness, Lorraine Smith, testified that while talking on the telephone in her own apartment she observed defendant, whom she had known for 12 years as a friend of her son's father, jump out the window of another apartment and walk away carrying a stereo. Some days later she learned that the other apartment had been burglarized. At trial, the victim estimated the distance from his apartment to Ms. Smith's to be between 120 to 150 feet, while Ms. Smith estimated the distance at between 110 and 120 feet. Ms. Smith testified that the closest defendant came to her as he left the scene of the burglary was 55 to 60 feet. There was no other evidence linking defendant to the crime.
Defendant produced two witnesses who testified that on the day of the crime defendant was in South Carolina. Defendant's wife testified that she drove defendant to the airport three weeks before the burglary and that she spoke to him from a pay telephone almost every day until July 22, 1978 when he returned home. Another witness who had known defendant for 20 years and who was defendant's good friend, testified that defendant stayed at his apartment in Columbia, South Carolina from June 30, 1978 until July 22, 1978 and that he saw him every day during this period.
Defendant argues that in view of the "unpersuasive" nature of the People's case and the "compelling" alibi defense, the People failed to establish his guilt beyond a reasonable doubt. We disagree. However, we do agree that there are sufficient uncertainties with respect to the identification testimony to warrant reversal based on the incomplete and erroneous instructions given with respect to the identification testimony and the alibi defense. With respect to the alibi defense, the trial court instructed the jury: "I instruct and charge you that an alibi, if you believe it, is a strong defense * * * Therefore, I direct you to examine, scrutinize and weigh carefully the testimony of the alibi witnesses". This instruction was inadequate in many respects. This charge erroneously implied that the jury could conclude that the alibi defense was only effective if they had a subjective belief as to its truth. We have repeatedly held that such a statement may be wrongly interpreted by the jury as shifting the burden of proof with respect to the alibi defense away from the People and to the defendant (People v....
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