Opinion
August 8, 1983
Appeals by defendants from three judgments of the County Court, Suffolk County (Harris, J.), all rendered August 6, 1982, convicting each defendant of two counts of offering a false instrument for filing in the first degree and also convicting defendant Wyandanch Economic Development Corp. of attempted grand larceny in the third degree, upon jury verdicts, and imposing sentences. Judgments reversed, on the law, and new trial ordered before a Judge other than the Judge who presided at the first trial. We find that the interference of the Trial Judge during the course of the trial whereat he assumed a prosecutorial role seriously prejudiced defendants' right to a fair trial so that their convictions must be reversed and a new trial ordered. We recognize that it is the duty of a Trial Judge to actively examine witnesses to clarify the issues for the jury or to facilitate or expedite the orderly progress of the trial ( People v Yut Wai Tom, 53 N.Y.2d 44, 57). This duty, however, must be properly circumscribed so as not to result in the court taking an adversarial position at the trial ( People v Tucker, 89 A.D.2d 153). Under the circumstances of this case, where incriminating testimony was elicited by the court's own questioning, a reversal is required to insure defendant's right to a fair trial. The People argue that defendants have not preserved this issue for review (see People v Charleston, 56 N.Y.2d 886). Our review of the record, however, indicates that counsel entered objections to the court's conduct at a meaningful time but to no avail. It is clear that at other times counsel objected to the fact of the court's questioning and not merely the nature of the question as was the situation precluding review of the court's conduct in People v Charleston ( supra). Accordingly, we find the issue is preserved. In light of our determination we need not reach the other issues presented. Damiani, J.P., Titone, Mangano and Gibbons, JJ., concur.