The test in examining a jury charge is whether the jury, hearing the whole charge, gathered from its language the correct rules to be applied in reaching a decision (People v Russell, 266 NY 147). In considering the entire charge in this case, the jury was correctly instructed, and there is no basis for granting a new trial to obtain another alibi instruction when the charge correctly presented the prosecution’s burden to the jury, as well as the proper consideration of the alibi (People v Brown, 62 AD2d 715, affd 48 NY2d 921).
The court instructed the jury that, if defendant’s alibi was sufficient to raise a reasonable doubt concerning his *434whereabouts at the particular time when the crimes were committed, he was entitled to an acquittal; that defendant was not required to prove his alibi beyond a reasonable doubt; and that the People’s burden of proof never shifts. Furthermore, the court specifically instructed that the burden was on the People to establish beyond a reasonable doubt the necessary element that defendant was the perpetrator of the crimes charged and, if they failed to prove this element of the crime, a verdict of not guilty must, be returned. The court’s statements satisfy the necessary standards for alibi instructions, and place on defendant no improper burden of proof on this issue (see People v Rabinowitz, 290 NY 386; People v Elmore, 277 NY 397; People v Barbato, 254 NY 170; People v Jones, 74 AD2d 515).
Judgment reversed on the law and facts, and a new trial granted.
Simons and Schnepp, JJ., concur with Cardamone, J. P.; Callahan, J., not participating; Moule, J., dissents and votes to affirm in a separate opinion.