Opinion
March 5, 1984
Appeal by defendant from a judgment of the Supreme Court, Kings County (Schwartzwald, J.), rendered October 20, 1981, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence. ¶ Judgment reversed, on the law, and as a matter of discretion in the interest of justice, and new trial ordered. ¶ It is well established that a Trial Judge has a duty to assume an active role in the examination of witnesses in an effort to clarify issues, to elicit or develop significant facts and to facilitate the orderly progress of the trial (see People v Moulton, 43 N.Y.2d 944; People v De Jesus, 42 N.Y.2d 519). When, however, the Trial Judge oversteps those bounds and assumes a prosecutorial role, there is a denial of due process and a new trial must be ordered (see People v De Jesus, supra). Upon our review of the record in this case we find that the Trial Judge unduly injected himself into the trial by his excessive questioning and examination of the witnesses which tended to emphasize the key elements of the prosecution's case and trivialize the theory of the defense. By his conduct, the Trial Judge assumed the role of an advocate rather than an impartial referee and thereby denied defendant a fair trial. Therefore, a new trial is ordered. ¶ We have considered defendant's other arguments and find them to be without merit. Mangano, J.P., O'Connor, Weinstein and Lawrence, JJ., concur.