Opinion
January 19, 1976
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered March 29, 1973, convicting him of arson in the second degree and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. The trial court, in instructing the jury as to the defense of alibi, stated, "if, after carefully analyzing the evidence on behalf of the defendant, you come to the conclusion that it is false and that it has been interposed here intentionally as a false defense, such a finding by you may be considered as circumstances bearing on the guilt of the defendant if, in your judgment, it may fairly be inferred that he has thereby betrayed a certain consciousness of his own guilt." This statement, in essence, instructed the jury that it could draw an inference of guilt if it disbelieved the testimony of the alibi witnesses; it was prejudicial to the defendant and constituted reversible error (see People v Leasure, 34 A.D.2d 688; People v Cright, 47 A.D.2d 906). In addition, the trial court erred in its examination of one of the witnesses concerning prior criminal charges against him. Rabin, Acting P.J., Hopkins, Latham, Margett and Christ, JJ., concur.