Opinion
2017-06019 Ind. No. 2764/15
07-10-2019
The PEOPLE, etc., Respondent, v. Darnell RAMSEY, Appellant.
Robert DiDio, Kew Gardens, N.Y. (Bonnie C. Brennan of counsel), for appellant. John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Christopher J. Blira–Koessler of counsel), for respondent.
Robert DiDio, Kew Gardens, N.Y. (Bonnie C. Brennan of counsel), for appellant.
John M. Ryan, Acting District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Christopher J. Blira–Koessler of counsel), for respondent.
LEONARD B. AUSTIN, J.P., JOHN M. LEVENTHAL, SHERI S. ROMAN, ROBERT J. MILLER, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the Supreme Court, Queens County (Ronald Hollie, J.), rendered May 24, 2017, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is reversed, as a matter of discretion in the interest of justice, and the matter is remitted to the Supreme Court, Queens County, for a new trial before a different Justice.
In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see CPL 470.15[5] ; People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
However, there must be a new trial, before a different Justice, because the Supreme Court conducted excessive and prejudicial questioning of trial witnesses. Although defense counsel did not object to the questioning of witnesses by the court, we reach this contention in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a] ; People v. Sookdeo, 164 A.D.3d 1268, 1269–1270, 82 N.Y.S.3d 114 ; People v. Davis, 147 A.D.3d 1077, 1079, 47 N.Y.S.3d 455 ).
"[W]hile a trial judge may intervene in a trial to clarify confusing testimony and facilitate the orderly and expeditious progress of the trial, the court may not take on ‘the function or appearance of an advocate’ " ( People v. Zamorano, 301 A.D.2d 544, 546, 754 N.Y.S.2d 645, quoting People v. Arnold, 98 N.Y.2d 63, 67, 745 N.Y.S.2d 782, 772 N.E.2d 1140 ; see People v. Chatman, 14 A.D.3d 620, 620, 789 N.Y.S.2d 208 ). "The principle restraining the court's discretion is that a trial judge's ‘function is to protect the record, not to make it’ " ( People v. Sookdeo, 164 A.D.3d at 1269, 82 N.Y.S.3d 114 ; see People v. Yut Wai Tom, 53 N.Y.2d 44, 58, 439 N.Y.S.2d 896, 422 N.E.2d 556 ; People v. Hinds, 160 A.D.3d 983, 984, 76 N.Y.S.3d 99 ). Hence, "when the trial judge interjects often and indulges in an extended questioning of witnesses, even where those questions would be proper if they came from trial counsel, the trial judge's participation presents significant risks of prejudicial unfairness" ( People v. Sookdeo, 164 A.D.3d at 1269, 82 N.Y.S.3d 114 ; see People v. Davis, 147 A.D.3d at 1079, 47 N.Y.S.3d 455 ).
In this case, the Supreme Court engaged in extensive questioning of witnesses, usurped the roles of the attorneys, elicited and assisted in developing facts damaging to the defense on direct examination of the People's witnesses, bolstered the witnesses' credibility, interrupted cross-examination, and generally created the impression that it was an advocate on behalf of the People. The court's improper interference deprived the defendant of a fair trial, and a new trial before a different Justice is warranted (see People v. Sookdeo, 164 A.D.3d at 1269–1270, 82 N.Y.S.3d 114 ; People v. Hinds, 160 A.D.3d at 984, 76 N.Y.S.3d 99 ; People v. Robinson, 151 A.D.3d 758, 759, 56 N.Y.S.3d 248 ; People v. Davis, 147 A.D.3d at 1079, 47 N.Y.S.3d 455 ).
In light of our determination, we need not reach the defendant's remaining contentions.
AUSTIN, J.P., LEVENTHAL, ROMAN and MILLER, JJ., concur.