| People v Ojeda |
| 2014 NY Slip Op 04521 [118 AD3d 919] |
| June 18, 2014 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jared Ojeda, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Dina Zloczower of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Nicoletta J. Caferri, and Nancy Fitzpatrick Talcott of counsel), for respondnet.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Knopf, J.), rendered May 9, 2011, convicting him of burglary in the first degree androbbery in the first degree, upon a jury verdict, and sentencing him, as a juvenileoffender, to concurrent indeterminate terms of imprisonment of 3
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by reducing the sentences imposed from concurrent indeterminate terms ofimprisonment of 3
The defendant's contention that he was deprived of the right to a fair trial byexcessive interference by the trial court in the prosecution of the case is unpreserved forappellate review, as the defendant did not object to any of the conduct about which henow complains (see CPL 470.05 [2]). In any event, the defendant's contention iswithout merit. A trial court has wide discretion in directing the presentation of evidence,but it must exercise that discretion appropriately and without prejudice to the parties(see People v Arnold, 98 NY2d 63, 67 [2002]; CPL 260.30). At times, a courtmust take a more active role in the presentation of evidence in order to clarify aconfusing issue or to avoid misleading the trier of fact, but it should do so sparingly andwithout partiality, bias, or hostility (see People v Arnold, 98 NY2d at 67;People v Moulton, 43 NY2d 944, 945 [1978]; People v Jamison, 47NY2d 882, 883 [1979]). "[T]he line is crossed when the judge takes on either thefunction or appearance of an advocate at trial" (People v Arnold, 98 NY2d at 67;see People v Yut Wai Tom, 53 NY2d 44, 58 [1981]; People v De Jesus,42 NY2d 519, 523-524 [1977]; People v Mees, 47 NY2d 997, 998 [1979]).While the record shows that the trial court engaged in extensive and often unnecessaryquestioning of the witnesses, the trial court did not become an advocate for the People orusurp the role of the prosecutor or defense counsel (see People v Melendez, 31 AD3d 186 [2006]).Furthermore, the record as a whole shows that the trial court was impartial and not biasedagainst the defendant.
The Supreme Court providently exercised its discretion in denying the defendant'sapplication for youthful offender status. Since the defendant was convicted of armedfelony offenses (see CPL 1.20 [41] [b]; Penal Law §§ 70.02[1] [a]; 140.30 [4]; 160.15 [4]), he could only be adjudicated [*2]a youthful offender if there existed "mitigatingcircumstances that [bore] directly upon the manner in which the crime was committed,"or if his participation in the crimes was "relatively minor" (CPL 720.10 [3] [i], [ii]).Contrary to the defendant's contention, there were insufficient mitigating circumstancesto support such an adjudication here (cf. People v Henry, 76 AD3d 1031 [2010]; People vJhang, 302 AD2d 606, 607 [2003]; People v Fields, 287 AD2d 577 [2001];People v Chan, 87 AD2d 892 [1982]; compare People v Shrubsall, 167AD2d 929 [1990]; People v Noel, 106 AD2d 854 [1984]; People v Ortiz,97 AD2d 710 [1983]). However, the defendant, who was 15 years old at the time of theoffenses, was sentenced to the maximum indeterminate terms of imprisonment for ajuvenile offender (see Penal Law § 70.05 [2] [c]; [3] [c]). Under thecircumstances of this case, including the defendant's lack of any juvenile or criminalrecord, and the recommendations in the presentence report, the sentence imposed wasexcessive to the extent indicated (see People v Crew, 114 AD3d 696 [2014]; People v Green, 110 AD3d825 [2013]; People v Keenan, 130 AD2d 592, 593 [1987]). Dickerson, J.P.,Leventhal, Hall and Miller, JJ., concur.