Upon Whom Does the Burden of Pleading and Proof Lie Where ''Exception'' Is a Material Part of An Offense ?

In People v. Kohut (30 NY2d 183, 188), the Court of Appeals held that where the "defining statute contains an exception, the indictment must allege that the crime is not within the exception." Following that rule, where the exception is spelled out as a material part of an offense, appellate courts have placed upon the People the burden of pleading and proof. See: People v. Kirkham, 273 AD2d 509 [labor dispute exception is an element of criminal contempt]; People v. Best, 132 AD2d 773 [burden of proving gun is possessed outside of one's home or business rests with the People]).