People v. Victor

Silverman, J. (dissenting).

We would affirm the conviction.

The majority base their reversal on criticism of two sentences in the course of an almost 50-page charge by the court. The sentences relate to the burden of proof as applied to alibi.

As we pointed out in People v Contes (91 AD2d 562, 563): “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…