| People v Davis |
| 2017 NY Slip Op 01381 [147 AD3d 1077] |
| February 22, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Yushumpree Davis, Appellant. |
Lynn W. L. Fahey, New York, NY (Nao Terai and Leila Hull of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Anastasia Spanakos of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hollie, J.),rendered July 25, 2013, convicting him of criminal possession of a weapon in the second degree,criminal possession of a weapon in the third degree, and resisting arrest, upon a jury verdict, andimposing sentence.
Ordered that the judgment is reversed, as a matter of discretion in the interest of justice, andthe matter is remitted to the Supreme Court, Queens County, for a new trial before a differentJustice.
The charges against the defendant arise from an incident at a banquet hall during a privateparty. A witness for the People, a female security guard, testified that she recovered a gun fromthe defendant's person as he entered the banquet hall. The manager of the banquet hall testified tohaving seen the female security guard remove a weapon from the defendant's clothing. A malesecurity guard was also present and in the vicinity of these events, as per those witnesses.However, the male security guard was not called to testify at trial. The female security guardtestified that after she recovered the gun, the defendant fled, pursued by the male security guardand the manager. According to the female security guard, the defendant was wearing a yellowshirt. The female security guard testified that at around this same time, a scuffle occurredbetween several people in front of the club, including a man wearing a white shirt, and someonecried out, "gun." The female security guard testified that she then called the 911 emergencynumber and reported a man with a white shirt waving a gun. She testified, however, that she hadnever seen the man in the white shirt with a gun. She did not inform the 911 operator about herrecovery of the gun from the defendant inside the banquet hall, nor did she describe thedefendant to the 911 operator.
A police officer testified that he and his partner apprehended the defendant near the scene,hiding beneath a parked vehicle. The defendant was returned to the banquet hall, and after adiscussion between the female security guard and the officers, he was arrested. The juryconvicted the defendant of criminal possession of a weapon in the second and third degrees andresisting arrest.
The Supreme Court did not err in denying the defendant's untimely request for a [*2]missing witness charge with respect to the male security guard (see People v Barber, 133 AD3d868, 870 [2015]; People v Woods, 275 AD2d 332 [2000]).
However, the Supreme Court conducted excessive and prejudicial questioning of trialwitnesses, warranting a new trial. Although defense counsel did not object to the questioning ofwitnesses by the court, we reach this contention in the exercise of our interest of justicejurisdiction (see CPL 470.15 [6] [a]; see also People v Yut Wai Tom, 53 NY2d44, 55 [1981]). "[W]hile a trial judge may intervene in a trial to clarify confusing testimony andfacilitate the orderly and expeditious progress of the trial, the court may not take on 'the functionor appearance of an advocate' " (People v Zamorano, 301 AD2d 544, 546 [2003],quoting People v Arnold, 98 NY2d 63, 67 [2002]; see People v Chatman, 14 AD3d 620, 620 [2005]). "In lastanalysis, [the trial judge] should be guided by the principle that his [or her] function is to protectthe record, not to make it" (People v Yut Wai Tom, 53 NY2d at 58; see People vChatman, 14 AD3d at 620). "[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; seePeople v Yut Wai Tom, 53 NY2d at 58). Indeed, "even proper questions from trial judgespresent significant risks of prejudicial unfairness, particularly when the trial judge 'indulge[s] inan extended questioning' of witnesses" (People v Retamozzo, 25 AD3d 73, 87 [2005], quoting People vYut Wai Tom, 53 NY2d at 58).
Here, the Supreme Court engaged in extensive questioning of witnesses. The court elicitedstep-by-step details regarding the female security guard's recovery of the gun from the defendant.In addition, the court elicited details regarding the manager's observation of the defendant's gunand the 911 call made by the female security guard, in which she did not report her recovery of agun from the defendant. The court extensively questioned a defense witness as to his observationof events on the night in question. The court further questioned that defense witness as towhether he had made false statements to the police and before the grand jury in connection with aprior robbery conviction. Under these circumstances, the court's improper interference with theconduct of the trial deprived the defendant of a fair trial, and a new trial is warranted (see People v Reynolds, 90 AD3d956, 957 [2011]; Matter of JacqulinM., 83 AD3d 844, 845 [2011]; People v Retamozzo, 25 AD3d at 87; see alsoPeople v Chatman, 14 AD3d at 620).
Since there must be a new trial, we note that the prosecutor made improper summationcomments regarding the failure of the defendant to communicate certain information to the policeat the time of his apprehension (seePeople v Brisco, 145 AD3d 1028 [2d Dept 2016]; People v McArthur, 101 AD3d 752, 753 [2012]; see also People v Tucker, 87 AD3d1077, 1080-1081 [2011]).
In light of our determination, we need not reach the defendant's remaining contention.Mastro, J.P., Austin, Miller and Maltese, JJ., concur.