People v. Torres

• Decision Date: 17 June 1985
• Parties: The PEOPLE, etc., Respondent, v. Robert TORRES, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 793

490 N.Y.S.2d 793

111 A.D.2d 885

The PEOPLE, etc., Respondent, v. Robert TORRES, Appellant.

Supreme Court, Appellate Division,

Second Department.

June 17, 1985.

William E. Hellerstein, New York City (Donald W. Searles, New York City, of counsel), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (William Schrager, Kew Gardens, of counsel), for respondent.

Before THOMPSON, J.P., and WEINSTEIN, NIEHOFF and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered April 10, 1981, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence.

Judgment reversed, as a matter of discretion in the interest of justice, and new trial ordered.

On July 18, 1979, at approximately 2:30 A.M., complainants' apartment was burglarized. Both complainants viewed the perpetrator for less than 30 seconds in an apartment illuminated only by streetlights. They then saw the perpetrator for an additional few seconds, through the slats of the second floor fire escape, as he exited the building. One week later, one of the complainants saw defendant in the vicinity of her apartment and subsequently both complainants identified him to the police as the perpetrator.

At trial, defendant presented an alibi defense. However, the trial court erroneously instructed the jury that it "must be satisfied as to the truth of the alibi". The court failed to expressly state that the People had to disprove the alibi beyond a reasonable doubt and the language employed by the court impermissibly shifted the burden of proof to defendant (see, People v. Victor, 62 N.Y.2d 374, 377-78, 477 N.Y.S.2d 97, 465 N.E.2d 817; People v. McFadden, 100 A.D.2d 520, 473 N.Y.S.2d 210; see also, People v. Rodriguez, 111 A.D.2d 881, 490 N.Y.S.2d 276). Moreover, the court's instruction to "carefully scrutinize" the alibi evidence, without giving a corresponding instruction concerning the People's identification evidence, compounded the erroneous impression given to the jury concerning the respective burdens of proof (see, People v. McFadden, supra ).

Additionally, the prosecutor's inquiry concerning the failure of defendant and an alibi witness to report defendant's alibi to the police was improper, and the error was not dispelled by the trial court's limited instruction to the jury to disregard the prosecutor's questioning of defendant only. Defendant's emphatic denial of guilt to the arresting officer, followed by an ambiguous statement that he saw one complainant and "knew she recognized me" does not constitute a detailed admission which would permit the prosecutor to draw an adverse inference from defendant's silence (cf. People v. Savage, 50 N.Y.2d 673, cert denied 449 U.S. 1016). Defendant maintained "effective silence, even if something less than total", and,...