People v. Coleman , 471 N.Y.S.2d 380 ( 1983 )

Sweeney, J. P., and Main, J.,

dissent and vote to reverse in the following memorandum by Main, J. Main, J. (dissenting). We respectfully dissent. Almost identical language, used by the same Trial Judge on two separate occasions, has been recently disapproved by this court in People v Hoke (96 AD2d 644) and in People v Landor (92 AD2d 625), where we held that the instruction given implied that the defendant bears some burden of proof on the alibi and that the implication is not dispelled by a general instruction that the People have to prove the defendant’s guilt beyond a reasonable doubt (id., at p 626) . We, of course, are not unaware of the authorities, cited by the majority, which indicate that the defendant’s failure to request a corrected charge or to except to the erroneous portion precludes our review. However, under the circumstances prevailing here, given the importance of the alibi and identification issues together with the erroneous alibi instruction and the minimal instruction on identification, the error rises to such a magnitude or level as to require us to exercise the discretion entrusted to us (CPL 470.15, subd 6). Moreover, to the extent that the charge may be viewed as placing a burden of proof upon defendant with respect to the alibi, as twice found by this court, it may be fairly viewed as a clear deprivation of due process and such an error, on a fundamental principle of law, requires a reversal and a new trial.