PEOPLE v. JACK, 74 N.Y.2d 708 (1989)

541 N.E.2d 421, 543 N.Y.S.2d 392

THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. GREGORY JACK, Respondent.

Court of Appeals of the State of New York.
Decided June 15, 1989

Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Frederic S. Berman, J.

Page 709

Robert Morgenthau, District Attorney (Karen L. Mallory of counsel), for appellant.

Robert S. Dean and Philip L. Weinstein for respondent.

MEMORANDUM.

The order of the Appellate Division should be affirmed.

We agree with the Appellate Division that it was error for the trial court to refuse counsel’s request that it instruct the jury on alibi. The alibi testimony of defendant and his sister did not have to establish that it would have been impossible for the defendant to have committed the crime and need not have covered the whole time of the transaction in question (see, People v Holt, 67 N.Y.2d 819, 820-821 [quoting People v Barbato, 254 N.Y. 170, 178-179]). Rather, the evidence simply had to raise a reasonable doubt concerning defendant’s presence in the stairwell of the apartment building, as opposed to his sister’s apartment within that building, when the drugs were allegedly sold (see, People v Holt, supra, at 821; People v Barbato, supra, at 178-179; People v Elmore, 277 N.Y. 397, 405-406). Inasmuch as the alibi testimony, when viewed together with all the other evidence, could have created a reasonable doubt, a jury instruction on this defense was warranted and the failure to give it was not harmless error (see, People v Holt, supra, at 821 People v La Chance, 39 N.Y.2d 892; see also, People v Barbato, supra, at 178-179).

Page 710

Chief Judge WACTHER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order affirmed in a memorandum.