Seymour W. James, Jr., New York, NY (Michael C. Taglieri of
counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M.
Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Nancy
Fitzpatrick Talcott of counsel), for respondent.
LEONARD B. AUSTIN, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE,
COLLEEN D. DUFFY, JJ.
DECISION & ORDER
by the defendant from a judgment of the Supreme Court, Queens
County (Hollie, J.), rendered February 29, 2012, convicting
her of assault in the second degree (three counts) and
criminal possession of a weapon in the fourth degree, upon a
jury verdict, and imposing sentence.
that the judgment is reversed, on the law, and the matter is
remitted to the Supreme Court, Queens County, for a new trial
before a different Justice.
jury trial, the defendant was convicted of three counts of
assault in the second degree and one count of criminal
possession of a weapon in the fourth degree based on a series
of physical altercations involving three victims that took
place outside of an apartment complex in Queens. The Supreme
Court sentenced her to an aggregate term of six months of
incarceration followed by five years of probation. The
defendant's sole contention on appeal is that she was
deprived of her right to a fair trial by the court's
unwarranted and pervasive interference in the examination of
the witnesses at trial (see generally People v Yut Wai
Tom, 53 N.Y.2d 44).
outset, we reject the People's contention that the issue
is unpreserved merely because defense counsel did not object
to the first instances of interference by the Supreme Court.
"To suggest... that an objection was required to be
entered in this instance at the first sign of court
interference misperceives the nature of the claim being
asserted and would do an injustice to CPL 470.05[subd
2]" (id. at 55; see People v
Charleston, 56 N.Y.2d 886, 888). The record demonstrates
that defense counsel timely and appropriately registered his
protest to the claimed error. In addition to objecting to
specific questions, counsel unequivocally asserted that the
court's extensive questioning of witnesses was intrusive
and prejudicial, thus providing an opportunity to correct the
error (see CPL 470.05; cf. People v
Charleston, 56 N.Y.2d at 887-888; People v
Ojeda, 118 A.D.3d 919, 919).
to the merits, we agree with the defendant that she was
deprived of a fair trial by the Supreme Court's excessive
and prejudicial interference with the examination of
judges have wide discretion in directing the presentation of
evidence but must exercise that discretion appropriately and
without prejudice to the parties" (People v
Arnold, 98 N.Y.2d 63, 67; see CPL 260.30).
While "neither the nature of our adversary system nor
the constitutional requirement of a fair trial preclude a
trial court from assuming an active role in the truth-seeking
process, " the court's discretion in this area is
not unfettered (People v Jamison, 47 N.Y.2d 882,
883; see People v Arnold, 98 N.Y.2d at 67;
People v Yut Wai Tom, 53 N.Y.2d at 57-58; People
v Keppler, 92 A.D.2d 1032, 1032). "The overarching
principle restraining the court's discretion is that it
is the function of the judge to protect the record at trial,
not to make it. Although the law will allow a certain
degree of judicial intervention in the presentation of
evidence, the line is crossed when the judge takes on either
the function or appearance of an advocate at trial
" (People v Arnold, 98 N.Y.2d at 67 [citation
omitted; emphasis added], citing, inter alia, People v
Yut Wai Tom, 53 N.Y.2d at 58; see People v
Chatman, 14 A.D.3d 620, 620). Thus, while there is no
absolute bar to a trial court asking a particular number of
questions of the witnesses in order to advance the goals of
truth and clarity, a court may not "assume the advocacy
role traditionally reserved for counsel, and in order to
avoid this, the court's discretion to intervene must be
exercised sparingly" (People v Arnold, 98
N.Y.2d at 68 [citations omitted]).
notwithstanding numerous objections by defense counsel, the
Supreme Court exercised little or no restraint in questioning
the witnesses at length and improperly "assume[d] the
advocacy role traditionally reserved for counsel"
(id.). We acknowledge that this trial was lengthy
because it involved three codefendants and multiple
complainants. However, contrary to the People's
contention, the court's questioning of the witnesses far
exceeded what was necessary to "clarify[ ] confusing
testimony" or facilitate "the orderly and
expeditious progress of the trial" (People v Yut Wai
Tom, 53 N.Y.2d at 57). The court engaged in protracted
and often unnecessary questioning on both direct and
cross-examination, and at times acted as an advocate for the
People (cf. People v Ojeda, 118 A.D.3d 919).
example, the Supreme Court effectively took over the direct
examination of a complaining witness while the prosecutor was
eliciting details related to whether the witness was stabbed
during the physical altercations at issue. In pertinent part,
the court posed at least eight fact-specific questions about
her physical location in relation to that of her attacker.
Moreover, during the direct examination of another
complaining witness, the court asked approximately six
consecutive questions, and summarized the witness's
testimony as follows:
"THE COURT: You described, just so that I am
understanding these phases of your fight, you are saying that
initially there was a fight with you and with you standing,
and then that fight had at some point turned at a point where
you are now on the grass with [the defendant], and then you
are saying that there was a point you were able to stand up.
And you also said there was at that point the fight began
again with you and [the defendant] hair pulling, etcetera.
"THE WITNESS: Yes."
during the prosecutor's direct examination of the
investigating detective, the Supreme Court interjected to ask
six consecutive questions about the procedure used by the
detective to generate suspects in the case. The court asked
many additional questions during the direct examination of
the People's other witnesses.
during the defendant's cross-examination of a complaining
witness, the Supreme Court redirected the inquiry and blunted
the force of counsel's attempt to impeach the witness
regarding injuries sustained by one of ...