| People v Sookdeo |
| 2018 NY Slip Op 06040 [164 AD3d 1268] |
| September 12, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Lutchman Sookdeo, Appellant. |
Christopher Renfroe, Forest Hills, NY (Eric Renfroe of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Kathryn Mullen of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Ronald D.Hollie, J.), rendered February 15, 2017, convicting him of gang assault in the second degree,assault in the second degree, and assault in the third degree, upon a jury verdict, and imposingsentence.
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.
In fulfilling our responsibility to conduct an independent review of the weight of theevidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), we accord greatdeference to the jury's opportunity to view the witnesses, hear the testimony, and observedemeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied that the verdict of guiltof gang assault in the second degree was not against the weight of the evidence (see CPL470.15 [5]; People v Romero, 7NY3d 633 [2006]).
However, there must be a new trial, before a different justice, because the Supreme Courtconducted excessive and prejudicial questioning of trial witnesses. Although defense counsel didnot object to most instances of judicial interference, we reach this contention in the exercise ofour interest of justice jurisdiction (see CPL 470.15 [6] [a]; People v Davis, 147 AD3d 1077,1079 [2017]). "While 'neither the nature of our adversary system nor the constitutionalrequirement of a fair trial preclude a trial court from assuming an active role in the truth-seekingprocess,' the court's discretion in this area is not unfettered" (People v Robinson, 151 AD3d 758, 759 [2017], quoting Peoplev Storfs, 47 NY2d 882, 883 [1979]). The principle restraining the court's discretion is that atrial judge's "function is to protect the record, not to make it" (People v Yut Wai Tom, 53NY2d 44, 58 [1981]). Indeed, when the trial judge interjects often and indulges in an extendedquestioning of witnesses, even where those questions would be proper if they came from trialcounsel, the trial judge's participation presents significant risks of prejudicial unfairness (see People v Robinson, 151 AD3d758 [2017]; People v Davis, 147 AD3d at 1079). Accordingly, while a trial judgemay intervene in a trial to clarify confusing testimony and facilitate the orderly and expeditiousprogress of the trial, the court may not take on "the function or appearance of an advocate"(People v Arnold, 98 NY2d 63, 67 [2002]; see People v Davis, 147 AD3d at1079).
[*2] Here, the Supreme Court interjected itselfinto the questioning of multiple witnesses, elicited step-by-step details about how the defendantwas identified by witnesses as a suspect, and generally created the impression that it was anadvocate for the People. Under the circumstances, the court's improper interference deprived thedefendant of a fair trial, and a new trial before a different justice is warranted (see People v Hinds, 160 AD3d 983[2018]; People v Robinson, 151AD3d 758 [2017]; People v Davis, 147 AD3d at 1079).
The defendant's remaining contentions are without merit. Leventhal, J.P., Cohen,Hinds-Radix and Iannacci, JJ., concur.