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 did the acts charged, he is nevertheless not criminally liable. In the ‘defense’ of alibi, the defendant says that he did not do the act charged. As part of his contention he says that he was not even at the crime scene but that he was somewhere else, the alibi scene.”
As to the “defenses” properly so called in the nature of confession and avoidance, it is logically and practically possible for the jury to be satisfied beyond a reasonable doubt that the defendant had committed the crime but still have a reasonable doubt whether the defenses have been established. It is therefore necessary to state separately and distinctly the rules as to burden of proof as to these defenses in the nature of confession and avoidance. And the statute does so state — that as to some of the defenses the People have the burden of disproving the defense beyond a reasonable doubt (Penal Law, § 25.00, subd 1), as to others, the “affirmative defenses”, the defendant has the burden of establishing the defense by a preponderance of the evidence (Penal Law, § 25.00, subd 2).
In the case of alibi however, if the jury is satisfied beyond a reasonable doubt that the defendant committed the crime, it can have no reasonable doubt that the defendant was present at the scene at the time of the crime, and thus it must have rejected the alibi defense beyond a reasonable doubt. Conversely, if the jury has a reasonable doubt as to whether the defendant was even present at the scene at the time of the crime (alibi), then it cannot be satisfied beyond a reasonable doubt that the defendant has committed the *295crime. “The obligation of the People to prove beyond a reasonable doubt that the defendant committed the criminal acts necessarily includes the obligation to prove beyond a reasonable doubt that the defendant was at the criminal scene at the time, which in turn means proof — express or implied — beyond a reasonable doubt that the defendant was not somewhere else.” (People v Contes, 91 AD2d, at p 563.) Thus there is neither need nor room for a special rule as to burden of proof as to alibi. The general rule that guilt must be proved beyond a reasonable doubt obviously covers and includes alibi, inevitably and practically in the jury’s consideration.
In the end of course, although the analysis is different, the burden of proof with respect to those statutory defenses which the People have the burden of disproving beyond a reasonable doubt under subdivision 1 of section 25.00 of the Penal Law, and the burden of proof with respect to alibi, are the same; but as to alibi, the matter falls more logically simply within the general rule that guilt must be proved beyond a reasonable doubt.
The trial court was aware both of the correct analysis and the correct rule. Defendant’s attorney requested a charge, which beginning with some language which was probably less favorable to the defendant than the charge as actually given, ended with this request: “Alibi is a defense. The People have the burden of disproving the alibi beyond a reasonable doubt.” In this respect it is clear that the defendant was assimilating the alibi to the statutory confession and avoidance defenses, and applying the burden of proof statute with respect to non-“affirmative defenses.” (Penal Law, § 25.00, subd 1.) To this the court responded:
“Alibi is not, in so many terms, a statutory defense. I see the request to charge which consists of three sentences. It talks of it in those terms, to wit, the same manner in which the Penal Law excuses the burden of proof, vis-a-vis statutory defenses * * *
“It says in the charge I intend to give that the defendant is entitled to have alibi testimony fairly treated like any other testimony in the case, although he is not obligated to establish that it was impossible for him to have committed, *296aided or participated in the commission of the crime. It seems to me even stronger from the defendant’s point of view from what you got * * *
“You see, in New York Penal Law, alibi as such is not a statutory defense but I am charging they have to prove his guilt beyond a reasonable doubt in connection with alibi in addition to a standard charge on it.
“That is what the court did in its charge.”
In an earlier part of the opinion, the court stated the general rule as to the presumption of innocence and the requirement of proof beyond a reasonable doubt which never shifts to the defendant. When the court came to the discussion of alibi it again repeated the requirement of proof beyond a reasonable doubt in connection with alibi. The court first discussed the nature of alibi, and then went on to say: “In all criminal cases the defendant never has the burden of proof. In all criminal cases the prosecution, at all times, has the burden of proof and the prosecution must prove a defendant’s guilt beyond a reasonable doubt.” Then came the two sentences criticized by the majority of this court, which then conclude with the correct and precise statement of the rule as to burden of proof with respect to alibi: “If the proof as to alibi, when taken into consideration with all of the other evidence in the case raises a reasonable doubt as to the defendant’s guilt of any of the four crimes with which we are concerned, he is entitled to an acquittal of that crime that you are considering.” The two sentences criticized by the majority come between the precise and correct statements as to the rule, which we have quoted.
The criticized sentences could have been better phrased (and punctuated). But as the Court of Appeals has cautioned us, “convictions are not to be set aside because, on reflection in tranquility, better charges could have been composed” (People v Yanik, 43 NY2d 97, 100). The criticized sentences are framed between the correct governing statements before and after them, and take their coloration from those governing statements.
What the court was saying in these two sentences is just what it had indicated in the discussion of the requests to *297charge: (1) that evidence of alibi is like any other evidence and should be treated that way in relation to the problems of reasonable doubt, and (2) that even if the evidence of alibi is not complete in the sense of not excluding all possibility of having committed the crime there would still remain the question of whether the defendant availed himself of the possibility of committing the crime.
As to the latter statement, part of defendant’s alibi for one of the crimes, the October 30, 1978 incident, was that he had spent the time at his parents-in-law’s home. The District Attorney, both in cross-examination and on summation, had brought out that there were a lot of people at the house at that time, and that defendant’s mother-in-law did not watch the defendant all through the evening and could not say whether the defendant left and came back. It may well be that this is the possibility that the Judge was pointing out need not be absolutely excluded.
Thus the second statement, relating to excluding the possibility, is not a statement that defendant must prove the alibi but is really in the nature of an argumentative concession in defendant’s favor that even if (as the District Attorney had argued) the evidence of alibi if true still does not exclude the possibility of the defendant committing the crime, there still remains the question for the jury as to whether the defendant availed himself of the possibility of committing the crime. Ultimately, perhaps alerted by this cautionary statement by the Judge, the jury acquitted defendant as to the October 30 incident to which it obviously referred.
And that statement is immediately followed by the overall correct statement that if evidence as to alibi taken with all the other evidence in the case raises a reasonable doubt, defendant is entitled to an acquittal.
In this case, as in most appeals after trial, one of our problems is to try to recapture from the cold record what went on “live” in the trial court, what the real contested issues were and what was the probable effect of particular criticized remarks, frequently presented to us not quite in context and somewhat out of focus. We must try to see the claims of error in the perspective of the whole case. In the *298perspective of the whole case and of the issues that were actually being considered, the charge was correct and not confusing. And nobody asked for a clarification.
Fein and Milonas, JJ., concur with Alexander, J.; Ross, J. P., and Silverman, J., dissent in an opinion by Silverman, J.
Judgment, Supreme Court, Bronx County, rendered on November 12, 1980, reversed, on the law, and a new trial ordered.