Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 4, #20©

Issue: The Alibi "Defense"

Alibi, is not, per se, a defense, according to the Court of Appeals. "Rather, it is simply evidence that will require as acquittal, if, when all the evidence is considered, reasonable doubt is raised as to defendants guilt." People v Victor, 62 NY2d 374, 477 NYS2d 97 (1984).

Nevertheless, to avoid confusion, an alibi is treated for practical purposes the same as a statutory "defense" under subdivision 1 of Penal Law § 25.00.  Thus, the People have the burden of disproving an alibi beyond a reasonable doubt and a judge must unequivocally state that burden in the jury charge." People v Warren, 76 NY2d 773, 559 NYS2d 954 (1990).

"Alibi" is a shorthand description for a defense that a defendant was elsewhere when the alleged offense took place.  The defendant is saying, in essence, "I'm not guilty because I didn't do it. I wasn't there so I couldn't have done it." As such, alibi puts the burden upon the prosecution to establish its case in full and to disprove the defense beyond a reasonable doubt. Muldoon and Feuerstein, Handling a Criminal Case in New York, §15:67.

An alibi notice is required where the defendant will offer evidence of being absent from the scene when the crime was committed. The time limit for this notice is eight days from the prosecution's demand (which is usually made at arraignment). CPL § 250.20. (If the prosecution hasn't filed a demand for notice of alibi, no response is required.) The purpose of the notice statute is to give the prosecutor opportunity to check on the information. After receiving the alibi notice, the prosecution in turn must serve a list of rebuttal witnesses, in no case later than ten days before the start of trial. CPL § 250.20(2). Handling §§ 8:65, 8:69. Courts have frequently allowed late service of alibi notice. If the notice is served late, or if the prosecutor objects to the late notice being served, the prosecutor may be entitled to an adjournment.  Where the defendant never provides an alibi notice, the court may deny admission of alibi testimony. People v Brown, 306 AD2d 12, 761 NYS2d 630 (1st Dept 2003).  However, the court may also extend the alibi notice period upon good cause shown. People v Walker, 294 AD2d 218, 743 NYS2d 403 (1st Dept 2002).

It should be kept in mind that the defense's ability to call witnesses is a constitutional right. Noble v Kelly, 246 F3d 93 (2d Cir 2001). If a defendant provides a false alibi, that may not be used as evidence of guilt. People v Wright, 86 AD2d 968, 448 NYS2d 293 (4th Dept 1982). Filing of a notice of alibi may affect the trial evidence, permitting the prosecution to introduce uncharged crimes to establish, e.g., identity. People v Watson, 281 AD2d 691, 721 NYS2d 700 (3d Dept 2001). Where alibi evidence is introduced at the grand jury, the prosecutor should provide legal instructions. Handling § 6:86.

If it is only the defendant who testifies to being elsewhere than at the crime scene, no alibi notice is required. People v Peace, 256 AD2d 1014, 683 NYS2d 317 (3d Dept 1998); Handling § 8:68.  The defendant may testify as to who he was with, though that companion may be barred from testifying. See People v Cuevas, 67 AD2d 219, 414 NYS2d 520 (1st Dept 1979). This may set up a missing witness instruction, however. See People v Massa, 202 AD2d 954, 609 NYS2d 742 (4th Dept 1994).


"You taught me language and my profit on it was, I learned to curse." Caliban to Prospero, The Tempest


Damon rule
State. Disclosure to prosecution of defense witness's prior statements ("converse of Rosario rule"). Does not apply to defendant's statements to defense counsel, which are covered by the attorney-client privilege.  Also, reciprocal discovery, reciprocal Rosario rule. People v Damon, 24 NY2d 256, 299 NYS2d 830 (1969); CPL 240.44, 240.45(2); Handling § 8:135.


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