| People v Mitchell |
| 2020 NY Slip Op 03541 [184 AD3d 875] |
| June 24, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Brian Mitchell, Appellant. |
Janet E. Sabel, New York, NY (Denise Fabiano and Lawrence T. Hausman of counsel), forappellant.
Melinda Katz, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill,and William H. Branigan of counsel; Mirza Hadzic on the brief), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (RichardBuchter, J.), rendered April 18, 2018, convicting him of robbery in the first degree, criminalpossession of a weapon in the third degree, criminal possession of stolen property in the fourthdegree, criminal possession of stolen property in the fifth degree, and criminal trespass in thethird degree, upon a jury verdict, 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.
Contrary to the defendant's contention, the verdict was not against the weight of theevidence. 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 [2007]), we nevertheless accordgreat deference to the factfinder's opportunity to view the witnesses, hear the testimony, andobserve demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied thatthe verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The defendant's contention that he was deprived of a fair trial due to the Supreme Court'squestioning of the complainants regarding their in-court identification of the defendant isunpreserved for appellate review (see CPL 470.05 [2]; People v Yut Wai Tom, 53NY2d 44, 56 [1981]; People vSookdeo, 164 AD3d 1268, 1269-1270 [2018]; People v Davis, 147 AD3d 1077, 1079 [2017]). Nevertheless, wereach this contention in the exercise of our interest of justice jurisdiction, based upon theparticular circumstances of this case (see CPL 470.15 [6] [a]; People v Sookdeo, 164 AD3d1268 [2018]).
"While 'neither the nature of our adversary system nor the constitutional requirement of a fairtrial preclude a trial court from assuming an active role in the truth-seeking process,' the court'sdiscretion 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 at 58). Accordingly, while a trial judge may intervene in a trial to clarify confusingtestimony and facilitate the orderly and expeditious progress of the trial, the court may not takeon "the function or appearance of an advocate" (People v Arnold, 98 NY2d 63, 67[2002]; see People v Davis, 147 AD3d at 1079).
Here, the record demonstrates that after the two complainants, in response to questions by theprosecutor, were unable to positively identify the defendant as the perpetrator of the robbery, theSupreme Court improperly assumed the appearance or the function of an advocate by questioningthe complainants until it elicited a positive in-court identification of the defendant from each ofthem (see People v Yut Wai Tom, 53 NY2d at 57). Under these circumstances, the court'sdecision to elicit such testimony was an improper exercise of discretion and deprived thedefendant of a fair trial. Accordingly, a new trial is warranted (see People v Hinds, 160 AD3d 983[2018]; People v Davis, 147 AD3d at 1079; People v McCann, 90 AD2d 554[1982]). Dillon, J.P., LaSalle, Barros and Christopher, JJ., concur.