| People v Robinson |
| 2017 NY Slip Op 04473 [151 AD3d 758] |
| June 7, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Dylesha Robinson, Appellant. |
Seymour W. James, Jr., New York, NY (Michael C. Taglieri of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, Joseph N. Ferdenzi, and Nancy Fitzpatrick Talcott of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Hollie, J.),rendered February 29, 2012, convicting her of assault in the second degree (three counts) andcriminal possession of a weapon in the fourth degree, upon a jury verdict, and imposingsentence.
Ordered that the judgment is reversed, on the law, and the matter is remitted to the SupremeCourt, Queens County, for a new trial before a different Justice.
After a jury trial, the defendant was convicted of three counts of assault in the second degreeand one count of criminal possession of a weapon in the fourth degree based on a series ofphysical altercations involving three victims that took place outside of an apartment complex inQueens. The Supreme Court sentenced her to an aggregate term of six months of incarcerationfollowed by five years of probation. The defendant's sole contention on appeal is that she wasdeprived of her right to a fair trial by the court's unwarranted and pervasive interference in theexamination of the witnesses at trial (see generally People v Yut Wai Tom, 53 NY2d 44[1981]).
At the outset, we reject the People's contention that the issue is unpreserved merely becausedefense counsel did not object to the first instances of interference by the Supreme Court. "Tosuggest . . . that an objection was required to be entered in this instance at the firstsign of court interference misperceives the nature of the claim being asserted and would do aninjustice to CPL 470.05 (subd 2)" (id. at 55; see People v Charleston, 56 NY2d886, 888 [1982]). The record demonstrates that defense counsel timely and appropriatelyregistered his protest to the claimed error. In addition to objecting to specific questions, counselunequivocally asserted that the court's extensive questioning of witnesses was intrusive andprejudicial, thus providing an opportunity to correct the error (see CPL 470.05 [2]; cf.People v Charleston, 56 NY2d at 887-888; People v Ojeda, 118 AD3d 919, 919 [2014]).
Turning to the merits, we agree with the defendant that she was deprived of a fair trial [*2]by the Supreme Court's excessive and prejudicial interference withthe examination of witnesses.
"Trial judges have wide discretion in directing the presentation of evidence but must exercisethat discretion appropriately and without prejudice to the parties" (People v Arnold, 98NY2d 63, 67 [2002]; see CPL 260.30). While "neither the nature of our adversary systemnor the constitutional requirement of a fair trial preclude a trial court from assuming an activerole in the truth-seeking process," the court's discretion in this area is not unfettered (People vStorfs, 47 NY2d 882, 883 [1979]; see People v Arnold, 98 NY2d at 67; People vYut Wai Tom, 53 NY2d at 57-58; People v Keppler, 92 AD2d 1032, 1032 [1983])."The overarching principle restraining the court's discretion is that it is the function of the judgeto protect the record at trial, not to make it. Although the law will allow a certain degree ofjudicial intervention in the presentation of evidence, the line is crossed when the judge takes oneither the function or appearance of an advocate at trial" (People v Arnold, 98 NY2dat 67 [citation omitted and emphasis added], citing, inter alia, People v Yut Wai Tom, 53NY2d at 58; see People v Chatman,14 AD3d 620, 620 [2005]). Thus, while there is no absolute bar to a trial court asking aparticular number of questions of the witnesses in order to advance the goals of truth and clarity,a court may not "assume the advocacy role traditionally reserved for counsel, and in order toavoid this, the court's discretion to intervene must be exercised sparingly" (People vArnold, 98 NY2d at 68 [citations omitted]).
Here, notwithstanding numerous objections by defense counsel, the Supreme Court exercisedlittle or no restraint in questioning the witnesses at length and improperly "assume[d] theadvocacy role traditionally reserved for counsel" (id.). We acknowledge that this trial waslengthy because it involved three codefendants and multiple complainants. However, contrary tothe People's contention, the court's questioning of the witnesses far exceeded what was necessaryto "clarify[ ] confusing testimony" or facilitate "the orderly and expeditious progress of the trial"(People v Yut Wai Tom, 53 NY2d at 57). The court engaged in protracted and oftenunnecessary questioning on both direct and cross-examination, and at times acted as an advocatefor the People (cf. People v Ojeda,118 AD3d 919 [2014]).
For example, the Supreme Court effectively took over the direct examination of acomplaining witness while the prosecutor was eliciting details related to whether the witness wasstabbed during the physical altercations at issue. In pertinent part, the court posed at least eightfact-specific questions about her physical location in relation to that of her attacker. Moreover,during the direct examination of another complaining witness, the court asked approximately sixconsecutive questions, and summarized the witness's testimony as follows:
"THE COURT: You described, just so that I am understanding these phases of your fight,you are saying that initially there was a fight with you and with you standing, and then that fighthad at some point turned at a point where you are now on the grass with [the defendant], and thenyou are saying that there was a point you were able to stand up. And you also said there was atthat point the fight began again with you and [the defendant] hair pulling, etcetera.
"THE WITNESS: Yes."
Similarly, during the prosecutor's direct examination of the investigating detective, theSupreme Court interjected to ask six consecutive questions about the procedure used by thedetective to generate suspects in the case. The court asked many additional questions during thedirect examination of the People's other witnesses.
Further, during the defendant's cross-examination of a complaining witness, the SupremeCourt redirected the inquiry and blunted the force of counsel's attempt to impeach the witnessregarding injuries sustained by one of the victims. In pertinent part, the questioning proceeded asfollows:
"Q. Isn't it true that the only information you ever gave the detectives [*3]was about what happened to you and what happened to. . . [complaining witness] Lakeisha; you never gave any information about whathappened to . . . [complaining witness] Ebony—[prosecutor]:Objection. . . .
"A. I only told them who—how I seen specifically we got cut. I only know specificallyhow I got cut and I only know specifically how Lakeisha got cut.
"THE COURT: So you are being asked whether or not as far as information that you hadgiven the detectives about Ebony—
"THE WITNESS: I never said anything about Ebony o[r] how she got cut.
"Q. Did you say anything about how Ebony was attacked or how many people fought withher; did you tell the detectives?
"A. We was all in a group. They was telling their story, and I told what I seen.
"Q. And weren't you, as part of that story, asked if you had any information as to whathappened to—what happened to Ebony?
"[prosecutor]: Objection. Hearsay . . .
"THE COURT: You are being asked whether you were asked by [a detective] anyquestions.
"THE WITNESS: They just told us to tell the story. That's it. So they wrote down what theywrote down.
"[defense counsel]: May I ask the questions?
"THE COURT: So you are saying you are in this room[?]
"THE WITNESS: As a group.
"THE COURT: [A] group of you?
"THE WITNESS: Everyone is telling their story.
"THE COURT: How many people are in this group?
"THE WITNESS: All the victims.
"THE COURT: When you said that they were asking you to tell your story, were you all inthe same room at the time that each one told their story?
"THE WITNESS: Correct.
"THE COURT: And did you tell the detectives each separately in this room what it is thatyou recall?
"THE WITNESS: Correct.
"[defense counsel]: Most respectfully, may I conduct my inquiry? I would like tocross-examine my own witness.
"THE COURT: I understand.
"[defense counsel]: Thank you.
"THE COURT: But you are saying that you were each in the room together?
"THE WITNESS: Correct.
"THE COURT: And you gave your story separately?
"THE WITNESS: Everybody took time, everybody took time to, you know, break itdown.
"THE COURT: Each one took time to separately make a statement?
"THE WITNESS: Correct."
Only after counsel objected three times and the Supreme Court essentially disregarded him infront of the jury, did the court allow him to resume his cross-examination.
Additionally, while defense counsel was attempting to impeach a prosecution witness withher grand jury testimony, the Supreme Court demonstrated apparent bias in favor of the Peopleand essentially vouched for the veracity of the witness by commenting, "I am almost sure that inthe course of the trial that a witness who is giving any testimony in the course of this trial, anywitness, is answering a question based upon their own personal knowledge and not oninformation given to them by others."
Viewing the record as a whole, we find that the course of conduct of the Supreme Court wassuch that the court assumed the appearance, if not the function, of an advocate at the trial by itsextensive examination of certain witnesses (see People v Arnold, 98 NY2d at 67; Matter of Jacqulin M., 83 AD3d844, 844 [2011]; People v Chatman, 14 AD3d at 620), and that the courtdemonstrated apparent bias in favor of the People (cf. People v Reynolds, 90 AD3d 956, 957 [2011]).
Contrary to the People's argument, the defendant's contention that she was deprived of herright to a fair trial is not subject to a harmless error analysis (see People v Mees, 47NY2d 997 [1979]; People v Crimmins, 36 NY2d 230, 237-238 [1975]; cf. People v Holiday, 142 AD3d625, 626 [2016]).
Accordingly, we remit the matter to the Supreme Court, Queens County, for a new trialbefore a different Justice (see People v Reynolds, 90 AD3d at 957; Matter of JacqulinM., 83 AD3d at 844; cf. People vKocsis, 137 AD3d 1476, 1481-1482 [2016]). Austin, J.P., Cohen, Maltese and Duffy,JJ., concur.