Opinion
December 13, 1979
Judgment, Supreme Court, New York County, rendered on July 26, 1976, convicting defendant, after jury trial, of murder in the second degree (Penal Law, § 125.25, subd 1), and sentencing him thereon, is affirmed. The Trial Judge's participation in the trial was certainly much more active and extensive than is customary. But in part, this was justifiable because of the language difficulty with most of the witnesses and the need for clarifying their answers. We do not think the Trial Judge exhibited partiality, nor, on balance, do we think that defendant was deprived of a fair trial or of a fair opportunity to present his defense.
Concur — Birns, Fein, Bloom and Silverman, JJ.
The Trial Justice propounded approximately 1,300 questions, which figure represents approximately 40% of all questions asked during the trial. In view of the language difficulties experienced by certain witnesses, some participation on his part was justified in order to clarify matters for the jury. However, the Trial Justice exceeded the bounds of proper intervention in this proceeding by usurping the authority of both the prosecutor and defense counsel to determine the content, course and manner of their presentations. (People v. Mees, 47 N.Y.2d 997, 998; People v. Brown, 53 A.D.2d 867.) Furthermore, the interruptions often tended to bolster the prosecution's case and to rehabilitate its witnesses. (People v. Richards, 48 A.D.2d 792.) In this case involving close issues of alibi and identification, the defendant was denied a fair and impartial trial by the nature and extent of the Trial Justice's unwarranted intrusions (People v. Ellis, 62 A.D.2d 469). For that reason, the judgment of the Supreme Court, New York County, rendered July 26, 1976, convicting defendant of murder in the second degree and sentencing him to an indeterminate sentence of 15 years to life should be reversed, on the law, and a new trial should be ordered.