| People v Reynolds |
| 2011 NY Slip Op 09354 [90 AD3d 956] |
| December 20, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v LarryReynolds, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Diane R. Eisner, andDavid Korngold of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Morgenstern, J.), rendered July 29, 2009, convicting him of attempted aggravated harassment inthe second degree (two counts) and harassment in the second degree, after a nonjury trial, andimposing sentence.
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interestof justice, and the matter is remitted to the Supreme Court, Kings County, for a new trial before adifferent Justice.
The complainant and the defendant have a son (hereinafter the son), who was born in 2004and resides with the complainant. After breaking off his relationship with the complainant, thedefendant married another woman, and fathered a child with that woman. The defendant testifiedat trial, and contends on appeal, that the complainant became vindictive after he becameromantically involved with the woman who is now his wife.
On September 6, 2008, less than one month after the defendant filed a petition in the FamilyCourt seeking custody of the son, the complainant told the police that the defendant hadthreatened her over the telephone. The defendant was charged with harassment in the seconddegree and two counts of attempted aggravated harassment in the second degree. Additionalcharges were dropped prior to trial. A nonjury trial was conducted, at which the complainant andher mother testified for the People, and the defendant, the defendant's wife, and a friend of thedefendant testified for the defense. The Supreme Court convicted the defendant of all threeremaining counts.
"Every defendant has the right to a trial before an unbiased court" (People vZamorano, 301 AD2d 544, 545 [2003]). The record reflects that the trial court exhibited biasagainst the defense witnesses on numerous occasions. Specifically, the trial court repeatedlyinterjected itself into the direct and cross examinations of the defense witnesses, even thoughthere was rarely any need to clarify their testimony (cf. People v Jamison, 47 NY2d 882,884 [1979]; People v Sevencan, 258 AD2d 485, 485-486 [1999]). Rather, the trial court'squeries clearly reflected that the trial court deemed the innocuous explanations provided by thedefense witnesses to be incredible (seePeople v [*2]Retamozzo, 25 AD3d 73, 88 [2005];People v Zamorano, 301 AD2d at 546-547). Although this issue is unpreserved forappellate review, we review it in the exercise of our interest of justice jurisdiction (see Peoplev Retamozzo, 25 AD3d at 88; People v Chatman, 14 AD3d 620, 621 [2005]; People vZamorano, 301 AD2d at 544).
The overarching issue at trial was witness credibility. The complainant and her motherfrequently contradicted themselves and one another on key issues. By contrast, the defensewitnesses' version of events was consistent, plausible under the circumstances, and supported bytelephone records. The evidence against the defendant, who had never been arrested prior to thisincident, was far less than overwhelming. Moreover, after the defense rested, the Trial Justiceinformed the prosecutor and the defendant that her intern had looked on the internet and providedher with information regarding the timing of an event discussed by the defense witnesses.According to the Trial Justice, this new information "br[ought] into question" the defensewitnesses' credibility. The defendant moved for a mistrial on the ground that the finder of factrelied on facts not in evidence, and the Supreme Court denied the motion. Despite the insistenceof the Trial Justice that she would not consider this new information, the bias she had alreadyexpressly exhibited was compounded by the impropriety inherent in adducing facts from a sourceoutside of the confines of the trial. On this record, we cannot say that the outcome of this trialwas not affected by judicial bias. Accordingly, the defendant is entitled to a new trial before adifferent Justice (see People v Zamorano, 301 AD2d at 547).
In light of our determination, we need not address the defendant's remaining contention.Florio, J.P., Balkin, Belen and Chambers, JJ., concur.