Opinion
March 11, 1985
Appeal from the County Court, Rockland County (Edelstein, J.).
Judgment affirmed.
Defendant's trial was marred by a great deal of heated colloquy which took place between the trial court and both attorneys. The acrimony which developed between the court and counsel resulted in both attorneys being threatened with contempt sanctions. The prosecutor was, in fact, ordered at one point to spend the night in jail. This did not occur in the jury's presence and, in fact, that order was subsequently rescinded. The trial court did not ask an inordinate amount of questions of witnesses so as to usurp the role of the prosecutor ( cf. People v. Yut Wai Tom, 53 N.Y.2d 44; People v. Buckheit, 95 A.D.2d 814). The exchanges between the court and counsel took place, in large measure, outside the presence of the jury. Also, the court was equally hostile in its remarks to both attorneys, and hence, the jury was not given the impression that the court had a bias in favor of one side or another ( cf. People v. Moulton, 43 N.Y.2d 944). Thus, the conduct of the trial court does not warrant reversal. We also find that the trial court did not abuse its discretion in connection with defendant's pretrial Sandoval motion ( People v Sandoval, 34 N.Y.2d 371). The evidence of guilt in this case is overwhelming, and the prosecutor's reference to defendant's use of heroin on the day of the crime, if error, was harmless ( People v. Crimmins, 36 N.Y.2d 230). Defendant's challenge to the jury charge was not preserved for review ( People v. Hoke, 62 N.Y.2d 1022) and we are not inclined to review it in the interest of justice. O'Connor, J.P., Rubin, Lawrence and Eiber, JJ., concur.