| People v Facey |
| 2013 NY Slip Op 01568 [104 AD3d 788] |
| March 13, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Earl Facey, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, ShulamitRosenblum Nemec, Keith Dolan, and Terrence F. Heller of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(McKay, J.), rendered November 30, 2010, convicting him of criminal possession of aweapon in the second degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's contention that the trial court erred in denying his request for amissing witness charge is only partially preserved for appellate review since some of thespecific arguments he now makes were not raised before the trial court (see CPL470.05 [2]; People vSpinelli, 79 AD3d 1152 [2010]; People v Lopez, 19 AD3d 510, 511 [2005]). In any event,this contention is without merit, as the defendant failed to demonstrate that the witness'stestimony would have been noncumulative (see People v Edwards, 14 NY3d 733, 735 [2010];People v Buckler, 39 NY2d 895, 897 [1976]; People v Stewart, 96 AD3d 880, 881 [2012]; People vLemke, 58 AD3d 1078, 1079 [2009]; People v Watson, 220 AD2d 333[1995]).
Although the defendant's contention regarding the trial court's participation inreading back certain trial testimony is unpreserved for appellate review, we neverthelessreach the issue in the exercise of our interest of justice jurisdiction. The defendant iscorrect that the court erred in this respect. We take this opportunity to emphasize that"[w]hen, during a read-back of testimony, a trial judge assumes the role of a witness orinquiring counsel, he or she may unwittingly and erroneously convey to [the] jury thatthe court is aligned with the party or counsel whose role the court has assumed in theread-back" (People vBrockett, 74 AD3d 1218, 1221 [2010]; see generally People v De Jesus,42 NY2d 519 [1977]). While the defendant's contention has merit, the error washarmless, and under the circumstances of this case, the error did not deprive thedefendant of a fair trial (see People v Crimmins, 36 NY2d 230 [1975]).
Contrary to the defendant's contention, he was not deprived of the effectiveassistance of counsel (see People v Benevento, 91 NY2d 708, 712 [1998]).Skelos, J.P., Leventhal, Hall and Sgroi, JJ., concur.