| People v Martinez |
| 2021 NY Slip Op 06193 [199 AD3d 834] |
| November 10, 2021 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Wilfridy V. Martinez, Appellant. |
Patricia Pazner, New York, NY (Anna Jouravleva of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (Johnnette Traill, Ellen C. Abbot, andEunice Villantoy of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (RonaldHollie, J.), rendered July 7, 2016, convicting him of attempted assault in the first degree, assaultin the second degree, criminal possession of a weapon in the fourth degree, and harassment in thesecond 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.
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d 620 [1983]), we find that it was legally sufficient to establish thedefendant's guilt of attempted assault in the first degree beyond a reasonable doubt. Contrary tothe defendant's contention, the evidence was legally sufficient to establish that the defendantintended to inflict a serious physical injury (see Penal Law §§ 10.00[10]; 110.00, 120.10 [1]; People vMosquera, 181 AD3d 723, 724 [2020]; People v Dawson, 178 AD3d 719, 720 [2019]). Moreover, infulfilling our responsibility to conduct an independent review of the weight of the evidence(see CPL 470.15 [5]; People vDanielson, 9 NY3d 342, 348 [2007]), we nevertheless accord great deference to thejury's opportunity to view the witnesses, hear the testimony, and observe demeanor (seePeople v Mateo, 2 NY3d 383 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]).Upon reviewing the record here, we are satisfied that the verdict of guilt on the count ofattempted assault in the first degree was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
However, there must be a new trial, before a different Justice. At trial, the Supreme Courtengaged in extensive questioning of witnesses, usurped the roles of the attorneys, and generallycreated the impression that it was an advocate for the People (see People v Yut Wai Tom,53 NY2d 44 [1981]; People vSavillo, 185 AD3d 840 [2020]; People v Ramsey, 174 AD3d 651 [2019]; People v Sookdeo, 164 AD3d1268 [2018]; People vRobinson, 151 AD3d 758 [2017]). Although defense counsel did not object to thecourt's conduct, based on the circumstances of this case, we reach this contention in the exerciseof our interest of justice jurisdiction (see CPL 470.15 [6] [a]; People v Mitchell, 184 AD3d 875,875-876 [2020]; People v Ramsey, 174 AD3d at 652).
[*2] In light of our determination, we need not address thedefendant's remaining contention. Chambers, J.P., Miller, Genovesi and Dowling, JJ.,concur.