Opinion
May 21, 1974
Judgment, Supreme Court, Bronx County, rendered January 22, 1973 convicting defendant after a jury trial of the crimes of burglary in the second degree and robbery in the second degree and sentencing him to concurrent terms of imprisonment of not less than 5 nor more than 15 years, unanimously reversed, on the law and in the interest of justice, and a new trial directed before another Judge. In our opinion, the record clearly demonstrates that defendant was not accorded a fair and impartial trial. Throughout the trial, the court unduly interjected itself into the proceedings, examining witnesses, including defendant, with prosecutorial zeal; making personal comments upon the testimony; expressing impatience with the matter in which defense counsel was proceeding; and generally conveying to the jury the court's "attitude * * * both in respect to the merits of the case and to the credibility of the witnesses." ( People v. Shenk, 181 App. Div. 753, 758.) In addition, it was highly prejudicial to permit one of the complaining witnesses to testify while holding her infant child in her arms. Under these circumstances, a new trial is required. ( People v. Mendes, 3 N.Y.2d 120; People v. Ohanian, 245 N.Y. 227; People v. Smith, 44 A.D.2d ___; People v. Sostre, 37 A.D.2d 574; People v. Farrell, 7 A.D.2d 642.) In view of the direction for a new trial, we do not find it necessary to consider the other claims of error.
Concur — Markewich, J.P., Kupferman, Murphy, Lupiano and Tilzer, JJ.