| People v Ramsey |
| 2019 NY Slip Op 05571 [174 AD3d 651] |
| July 10, 2019 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Darnell Ramsey, Appellant. |
Robert DiDio, Kew Gardens, NY (Bonnie C. Brennan of counsel), for appellant.
John M. Ryan, Acting District Attorney, Kew Gardens, NY (John M. Castellano, JohnnetteTraill, and Christopher J. Blira-Koessler of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (RonaldHollie, J.), rendered May 24, 2017, convicting him of robbery in the first degree, upon a juryverdict, and imposing 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.
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 guiltwas not against the weight of the evidence (see CPL 470.15 [5]; People v Romero, 7 NY3d 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 the questioning of witnesses by the court, we reach this contention in the exercise ofour interest of justice jurisdiction (see CPL 470.15 [6] [a]; People v Sookdeo, 164 AD3d1268, 1269-1270 [2018]; People vDavis, 147 AD3d 1077, 1079 [2017]).
"[W]hile a trial judge may intervene in a trial to clarify confusing testimony and facilitate theorderly and expeditious progress of the trial, the court may not take on 'the function orappearance 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]). "The principlerestraining the court's discretion is that a trial judge's 'function is to protect the record, not tomake it' " (People v Sookdeo, 164 AD3d at 1269; see People v Yut WaiTom, 53 NY2d 44, 58 [1981]; People v Hinds, 160 AD3d 983, 984 [2018]). Hence, "when thetrial judge interjects often and indulges in an extended questioning of witnesses, even wherethose questions would be proper if they came from trial counsel, the trial judge's participationpresents significant risks of prejudicial unfairness" (People v Sookdeo, 164 AD3d at1269; see People v Davis, 147 AD3d at 1079).
In this case, the Supreme Court engaged in extensive questioning of witnesses, usurped theroles of the attorneys, elicited and assisted in developing facts damaging to the defense on directexamination of the People's witnesses, bolstered the witnesses' credibility, interruptedcross-examination, and generally created the impression that it was an advocate on behalf of thePeople. The court's improper interference deprived the defendant of a fair trial, and a new trialbefore a different Justice is warranted (see People v Sookdeo, 164 AD3d at 1269-1270;People v Hinds, 160 AD3d at 984; People v Robinson, 151 AD3d 758, 759 [2017]; People vDavis, 147 AD3d at 1079).
In light of our determination, we need not reach the defendant's remaining contentions.Austin, J.P., Leventhal, Roman and Miller, JJ., concur.