
    The People of the State of New York, Respondent, v Bryan Smith, Appellant.
    (Appeal No. 2.)
   Judgment reversed on the law and new trial granted. Memorandum: In connection with its alibi charge, the court instructed the jury that: "[t]he burden of proof never shifts to the People * * * if you, the jury, believe the evidence * * * it is for you, the jury, to determine whether or not the alibi should be believed”; and "you must be satisfied as to the actual occurrence of the alibi”. This was fundamental error. The People have the burden of disproving the alibi and the court’s charge, which suggests that defendant had the burden of proof, "unconstitutionally relieve[d] the People of their burden of proving guilt beyond a reasonable doubt” (People v Victor, 62 NY2d 374, 377).

We do not reach the other issues raised by defendant.

All concur, Doerr, J. P., not participating. (Appeal from judgment of Erie County Court, La Mendola, J.—rape, first degree.) Present—Doerr, J. P., Boomer, Lawton, Davis and Lowery, JJ.  