People v. Contes , 457 N.Y.S.2d 45 ( 1982 )

— Judgment, Supreme Court, Bronx County (Cerbone, J.), rendered November 12, 1980 convicting defendant, on jury verdict, of robbery in the first degree (Penal Law, § 160.15), and sentencing him thereon, is affirmed. The issue on which our dissenting brother differs from us is the sufficiency of the court’s charge to the jury as to the defendant’s alibi. The language of the charge on this point is set forth in the dissent. The claim of error is essentially that this language in part shifts to the defendant the burden of proof on the issue of alibi whereas the People have the burden of disproving this defense, like every other issue in the case except affirmative defenses, beyond a reasonable doubt (Penal Law, S 25.00). We note first that there was no objection to the charge or any request for further instructions on this point. In People v Thomas (50 NY2d 467, 472), the Court of Appeals said: “|W]hen a court’s specific instructions on the burden of proof properly place the burden on the People, a claim that a portion of the charge could, in the particular case, be interpreted as having a contrary effect, does not come within the narrow exception to the rule that objections to the charge must be made at trial where the potential error can be corrected or avoided”. People v Jones (74 AD2d 515, 516), holding to the contrary was decided before the Court of Appeals decision in People v Thomas (supra). Further, the charge here involved differs in important respects from the criticized charge in the cases cited in the dissent. In each of those cases the court said that the jury “must be satisfied as to the truth” of the alibi. (People v Jones, supra; People v Velazquez, 77 AD2d 845, 846; People v Lediard, 80 AD2d 237, 241; People v Acevedo, 83 AD2d 813.) In the present case, the court imposed no requirement that the jury must be satisfied as to the truth of the alibi, but instead the court phrased it in terms of “if you, the jury, tend to believe the evidence”, etc. This is considerably less than a requirement that the jury be satisfied that the alibi is true; it goes little further than to say, if the jury is not prepared to reject the alibi evidence entirely, that in itself is sufficient to raise a reasonable doubt. But the Trial Judge went even further. He instructed the jury what to do even if they did not believe the alibi evidence. He said: “However, if you do not believe the alibi evidence, this does not mean that you should convict the defendant. Before you can convict the defendant, you must be convinced that the People have met their burden and have established the guilt of the defendant beyond a reasonable doubt.” In connection with this last instruction, it is illuminating to consider the nature of the “defense” of alibi. Alibi is not listed as a “defense” in the Penal Law “Title C — Defenses” (§25.00 et seq.). The defenses there enumerated — infancy, mental disease, justification, duress, entrapment, renunciation — are all defenses in the nature of confession and avoidance, i.e., the defendant says that even if he did the acts charged, he is nevertheless not criminally liable. In the “defense” of alibi, the defendant says that he did not do the act charged. As part of his contention he says that he was not even at the crime scene but that he was somewhere else, the alibi scene. The obligation of the People to prove beyond a reasonable doubt that the defendant committed the criminal acts necessarily includes the obligation to prove beyond a reasonable doubt that the defendant was at the criminal scene at the time, which in turn means proof — express or implied — beyond a reasonable doubt that the defendant was not somewhere else. This instruction given as part of the charge on proof of alibi amounted in essence to a charge that the People must disprove the defense of alibi beyond a reasonable doubt. No doubt the charge on proof of alibi and the burden of proof thereof could have been better stated along the lines suggested in People v Jones (74 AD2d 515, supra). But as the Court of Appeals has cautioned us, “convictions are not to be set aside because, on reflection in tranquility, better charges could have been composed.” (People v Yanik, 43 NY2d 97, 100.) Particularly, is this true when the defendant’s attorney makes no objection to the charge; an objection, if made, might well have resulted in a better charge. Defendant also criticizes the statement that the evidence with relation to alibi should be carefully scrutinized. The court did not limit its caution to one side of the case. The elaborate charge as to identification testimony must have impressed upon the jury the need of carefully scrutinizing that testimony too. As we have said, there was no objection to any part of the alibi charge. “There is neither constitutional nor jurisprudential error in permitting guilt to be determined under a penal statute as construed by the common assumption of both attorneys and the court. To hold otherwise is to encourage gamesmanship and waste judicial resources in order to protect a defendant against a claimed error protection against which requires no more than a specific objection on his part.” (People v Dekle, 56 NY2d 835, 837.) We have considered the other errors claimed and do not deem that they warrant reversal. Concur — Sullivan, J. P., Carro and Silverman, JJ.