TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DIANNE C.
RUSSELL OF COUNSEL), FOR DEFENDANT-APPELLANT.
DOORLEY, DISTRICT ATTORNEY, ROCHESTER (LEAH R. MERVINE OF
COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND
from a judgment of the Monroe County Court (John L. DeMarco,
J.), rendered January 16, 2013. The judgment convicted
defendant, upon a jury verdict, of robbery in the first
degree (six counts).
hereby ORDERED that the judgment so appealed from is
Defendant appeals from a judgment convicting him, upon a jury
verdict, of six counts of robbery in the first degree (Penal
Law § 160.15 , ) arising out of a holdup at a
restaurant. Defendant's primary contention on appeal is
that County Court's conduct in negotiating and entering
into a cooperation agreement with a prosecution witness
denied defendant due process of law. Defendant contends that
the court's actions, including acting as a prosecutor and
implicitly vouching for the credibility of a witness,
deprived him of a fair trial before an unbiased and neutral
judge and usurped the jury's fact-finding function.
Defendant's contention arises out of events that
transpired in significant part outside the record of
defendant's trial, in which the court interjected itself
into stalled plea negotiations between the People and one of
the codefendants, offering leniency in the sentencing of the
codefendant on the condition that he testify truthfully
against defendant at his trial.
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). "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 is not unfettered... 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" (id.). "Where
the Trial Judge oversteps the bounds and assumes the role of
a prosecutor, however well intentioned the motive[, ] there
is a denial of a fair trial and there must be a
reversal" (People v Ellis, 62 A.D.2d 469, 470;
see People v Jacobsen, 140 A.D.2d 938, 940; see
generally People v Yut Wai Tom, 53 N.Y.2d 44, 56-58).
criticize, in the strongest possible terms, the conduct of
the court in this case in personally negotiating and entering
into a quid pro quo cooperation agreement with the
codefendant whereby the court promised to sentence the
codefendant within a specific range in exchange for his
testimony against defendant. We nevertheless cannot conclude
on this record that defendant was deprived of a fair trial by
the codefendant's testimony, nor can we conclude that the
court in essence vouched for the truth of that testimony.
Because the court's conduct in this case occurred wholly
outside the presence of the jury, we conclude that the court
did not assume the appearance and role of a prosecutor in the
course of defendant's trial. Further, we note that the
facts and circumstances surrounding the codefendant's
plea deal and promise of cooperation were fully elucidated
for the jury on the direct examination and cross-examination
of the codefendant. Any prejudice to defendant caused by his
counsel's decision to cross-examine the codefendant
concerning his agreement with the court was cured by the
court's instruction to the jury, which defense counsel
helped to formulate. That instruction, which was to the
effect that the jurors alone were to determine the
credibility of the codefendant's testimony and were not
to infer that the court had an opinion as to defendant's
guilt or lack of guilt, is one that the jury is presumed to
have followed (see People v Morris, 21 N.Y.3d 588,
598; People v Spears, 140 A.D.3d 1629, 1630, lv
denied 28 N.Y.3d 974).
reject defendant's contention that the trial testimony of
a different prosecution witness should have been precluded in
its entirety as the fruit of the poisonous tree because the
police learned the identity of that witness from defendant
after violating his right to counsel. We conclude that the
witness's trial testimony was sufficiently attenuated
from the taint of any constitutional violation, because such
violation led "not to contraband or other real evidence,
but to a witness, a further and independent volitional source
of information-a source which became productive only upon the
application of additional, interacting forces to be found in
the personality and character of the witness and, perhaps, in
the intelligence and skill of her questioners"
(People v Mendez, 28 N.Y.2d 94, 101, cert
denied404 U.S. 911). We further conclude that defense
counsel was not ineffective for failing to move to preclude
the witness's testimony on the foregoing basis because
such a motion was unlikely to succeed (see People v
Ennis, 41 A.D.3d 271, 274, affd11 N.Y.3d 403,
cert denied556 U.S. 1240; ...