People v. Reyes , 633 N.Y.S.2d 17 ( 1995 )

—Judgment, Supreme Court, Bronx County (Harold Silverman, J.), rendered September 27, 1993, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 20 years to life, unanimously affirmed.

Defendant told the detective who arrested him that he was in Chicago on the night of the murder and that he had used a plane ticket issued in another person’s name to fly there. Two of defendant’s prior attorneys mentioned in discussions with the prosecutor that defendant might interpose an alibi defense, but neither filed a formal alibi notice. During jury selection, new defense counsel announced in open court that there might be an alibi witness whom defendant had mentioned to one of his previous attorneys, but after speaking with defendant, he too declined to give formal notice. Defendant later testified at trial that he was at the scene and witnessed the murder. Since, on this record, the details of the alibi defense were not fairly attributable to defendant, the trial court erred in permitting the prosecutor to impeach him regarding his discussions with his attorneys concerning his alibi (People v Jones, 190 AD2d 31, 33; compare, People v Shuff, 168 AD2d 348, Iv denied 77 NY2d 967). However, such error was harmless because the issue of defendant’s alibi was properly raised through questions regarding his statements to the arresting officer, and because the evidence of defendant’s guilt was overwhelming.

The court’s accomplice charge, when viewed as a whole, "clearly advised the jury how to evaluate the corroborating evidence” (People v Prittler, 214 AD2d 311, 312, Iv denied 86 NY2d 739). Concur—Sullivan, J. P., Rosenberger, Ross, Asch and Nardelli, JJ.