Opinion
June 1, 1971
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered November 5, 1970, convicting him of certain narcotics crimes, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. The findings of fact below are affirmed. In our opinion, defendant was deprived of a fair and impartial trial by the trial court. The record demonstrates that the court unduly interjected itself into the proceedings and undertook to gratuitously aid the prosecution's case by its own interrogation of the prosecution witnesses and by comments. It took it upon itself to resolve alleged inconsistencies in the prosecution's case and to rehabilitate the witnesses and belittled the contentions of the defense in charging the jury. In addition, the court erred in excluding from evidence an affidavit submitted in support of a search warrant by one of the police witnesses. It was admissible to the extent that it was a prior inconsistent statement, made in writing and under oath (Code Crim. Pro., § 8-a). Rabin, P.J., Munder, Shapiro, Christ and Brennan, JJ., concur.