Opinion
March 14, 1988
Appeal from the Supreme Court, Queens County (Browne, J.).
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial ordered.
The court's alibi charge was improper. The court did not unequivocally charge that the People had the burden to disprove the alibi defense beyond a reasonable doubt (see, People v Wintje, 68 N.Y.2d 637; People v. Victor, 62 N.Y.2d 374). The court erroneously charged that "the alibi evidence which defendant has placed before you seeks to convince you" and "if the alibi proof raises a reasonable doubt". Such phrases could be interpreted by the jury as shifting the burden of proof to the defendant (see, People v. Lee, 110 A.D.2d 913; cf., People v. Wintje, supra). Thus, viewing the charge in its entirety, we find that it was improper.
Although no objection was raised to the charge, we reach the issue because this is a "`one witness identification case [where] the issue of the complainant's credibility vis-a-vis that of the defense witnesses assume[s] paramount importance'" (People v Memminger, 126 A.D.2d 752, lv denied 69 N.Y.2d 953, quoting People v. Watson, 111 A.D.2d 888; see, People v. McFadden, 100 A.D.2d 520).
In light of our determination we do not reach the other issues raised by the defendant. Kunzeman, J.P., Eiber, Kooper and Harwood, JJ., concur.