Opinion
4039.
Decided June 29, 2004.
Judgment, Supreme Court, New York County (Arlene R. Silverman, J.), rendered May 1, 2002, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree, and sentencing him, as a second felony offender, to a term of 4½ to 9 years, unanimously affirmed.
Robert S. Dean, Center for Appellate Litigation, New York (Gayle Pollack of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Eleanor J. Ostrow of counsel), for respondent.
Before: Nardelli, J.P., Mazzarelli, Sullivan, Lerner, Friedman, JJ.
While the court's participation in examining witnesses was unduly extensive, the court did not take on "either the function or appearance of an advocate" ( People v. Arnold, 98 N.Y.2d 63, 67), or suggest to the jury that it had an opinion on the merits. Accordingly, defendant was not deprived of a fair trial ( see People v. Moore, 773 N.Y.S.2d 873; People v. Robinson, 3 A.D.3d 404) . However, we note that is not the first instance of this court's unwarranted intrusion into the presentation of a case by excessive questioning.
The court's instructions concerning evidence of uncharged contemporaneous drug sales sufficiently cautioned the jury concerning the limited purposes for which the evidence was being admitted. Given that this evidence was probative of defendant's accessorial liability for the charged sale ( see People v. Carter 77 N.Y.2d 95, 107, cert denied 499 U.S. 967), the language requested by defendant was not warranted.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.