Opinion
October 18, 1976
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered February 22, 1974, convicting him of attempted rape in the first degree, assault in the second degree, and endangering the welfare of a child, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. A charge identical to the one in this case — that disbelief of an alibi witness may be considered as bearing on the guilt of defendant — was held to be reversible error by this court because the charge, "in essence, instructed the jury that it could draw an inference of guilt if it disbelieved the testimony of the alibi witnesses" (People v Lee, 51 A.D.2d 557; see, also, People v Leasure, 34 A.D.2d 688; People v Cright, 47 A.D.2d 906). Latham, Acting P.J., Margett, Rabin, Titone and Hawkins, JJ., concur.