Opinion
April 14, 1989
Appeal from the Erie County Court, La Mendola, J.
Present — Callahan, J.P., Doerr, Boomer, Pine and Davis, JJ.
Judgment unanimously reversed on the law and new trial granted. Memorandum: By instructing the jury that it "must be satisfied as to the actual occurrence of the alibi", the court "conveyed to the jury * * * that the defendant must prove the truth of the alibi * * *. Thus, viewed in its entirety, the charge was not satisfactory without the additional requested warning that the People had the entire burden of disproving the alibi beyond a reasonable doubt" (People v. Victor, 62 N.Y.2d 374, 378; see also, People v. Campbell, 70 N.Y.2d 724, 725).