| Matter of Jacqulin M. |
| 2011 NY Slip Op 03070 [83 AD3d 844] |
| April 12, 2011 |
| Appellate Division, Second Department |
| In the Matter of Jacqulin M., Appellant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen McGrath and ElinaDruker of counsel), for respondent.
In a juvenile delinquency proceeding pursuant to Family Court Act article 3, Jacqulin M.appeals from an order of disposition of the Family Court, Queens County (Hunt, J.), dated June28, 2010, which, upon a fact-finding order of the same court dated June 14, 2010, made after ahearing, finding that the appellant committed acts which, if committed by an adult, would haveconstituted the crimes of grand larceny in the fourth degree and criminal possession of stolenproperty in the fifth degree, adjudged her to be a juvenile delinquent, and placed her on probationfor a period of 18 months.
Ordered that the order of disposition is reversed, on the law and as a matter of discretion inthe interest of justice, without costs or disbursements, the fact-finding order is vacated, and thematter is remitted to the Family Court, Queens County, for a new fact-finding hearing.
The appellant's contention that she was deprived of a fair trial because the Family CourtJudge took on the function of an advocate by excessively intervening in the fact-finding hearingis unpreserved for appellate review (see People v Charleston, 56 NY2d 886, 887 [1982];Matter of Aron B., 46 AD3d1431 [2007]; People v Negron,41 AD3d 865 [2007]; People vPerez, 30 AD3d 542 [2006]). However, we reach this issue in the exercise of our interestof justice jurisdiction because the Family Court Judge's excessive intervention deprived theappellant of her right to a fair fact-finding hearing (see CPL 470.15 [6] [a]; Matter of Yadiel Roque C., 17 AD3d1168, 1169 [2005]; People vChatman, 14 AD3d 620, 621 [2005]).
Although trial courts may appropriately take an active role in the presentation of evidence "inorder to clarify a confusing issue or to avoid misleading the trier of fact" (People vArnold, 98 NY2d 63, 67 [2002]), the function of the judge is "to protect the record at trial,not to make it" (id. at 67, citing People v Yut Wai Tom, 53 NY2d 44, 58 [1981];see People v Chatman, 14 AD3d at 620). Thus, while a certain degree of judicialintervention in the presentation of evidence is permissible, "the line is crossed when the judgetakes on either the function or appearance of an advocate at trial" (People v Arnold, 98NY2d at 67; see People v Zamorano, 301 AD2d 544, 546 [2003]). These principles applyin bench trials, including juvenile delinquency proceedings (see People v Arnold, 98NY2d at 65; Matter of Yadiel Roque C., 17 AD3d at 1169).[*2]
Here, the Family Court Judge took on the function andappearance of an advocate by extensively participating in both the direct and cross-examinationof the two presentment agency witnesses and eliciting testimony which strengthened thepresentment agency's case (see People v Yut Wai Tom, 53 NY2d at 58-59; Matter ofYadiel Roque C., 17 AD3d at 1169; People v Chatman, 14 AD3d at 620; Peoplev Zamorano, 301 AD2d at 546; People v Melendez, 227 AD2d 646 [1996]).Furthermore, when the appellant indicated, during the course of her direct examination, that acertain document which would support her defense had been turned over to a ProbationDepartment officer, the Judge interrupted her testimony to question a Probation DepartmentCourt Liaison who was present in the courtroom about whether documents of this nature wouldindeed be kept by the Probation Department. The Judge then summoned the ProbationDepartment officer assigned to the appellant's case to the courtroom, and indicated to theappellant's attorney that unless he agreed to stipulate as to what certain Probation Departmentrecords would reflect, those records would be admitted into evidence through the ProbationOfficer's testimony. It is clear from the record that neither the presentment agency nor theappellant's attorney intended to call the Probation Officer as a witness or enter the ProbationDepartment records into evidence, and the stipulation regarding what those records reflected hadthe effect of rebutting a portion of the appellant's testimony. Thus, the Judge essentially"assumed the parties' traditional role of deciding what evidence to present" (People vArnold, 98 NY2d at 68). Furthermore, the Judge offered no explanation on the record as towhy he felt compelled to solicit this evidence (id.). Under these circumstances, a newfact-finding hearing is warranted.
In light of our determination, we do not reach the appellant's remaining contention. Covello,J.P., Eng, Hall and Roman, JJ., concur.