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EXCESSIVE QUESTIONING BY THE TRIAL JUDGE WHICH TOOK ON THE FUNCTION AND APPEARANCE OF AN ADVOCATE DEPRIVED DEFENDANT OF A FAIR TRIAL (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the trial judge deprived defendant of a fair trial by excessive questioning ot eh defendant which “took on the function and appearance of an advocate.” The error was not preserved but the appeal was considered in the interest of justice:

Supreme Court engaged extensively in its own areas of inquiry, which detailed the nature of the complainant’s injury and clarified whether the injury was likely to have been intentionally caused by a sharp instrument. The court asked numerous leading questions of the People’s witness, a paramedic, as to what the paramedic observed, and guided the prosecution at length in its questioning of the paramedic. The court also assisted the prosecution in laying a foundation for the admission of evidence and repeatedly engaged in lengthy colloquies with various prosecution witnesses in order to effectively instruct these witnesses how to refresh their recollections in order to provide evidence favorable to the prosecution.

Viewing the record as a whole, the Supreme Court improperly took on the function and appearance of an advocate, at times even engaging in commentary on the testimony against the defendant, as well as on questions posed by defense counsel. The court’s conduct left the impression that its opinion favored the credibility of the People’s witnesses and the merits of the People’s case … , thus depriving the defendant of a fair trial … . People v Coleman, 2026 NY Slip Op 00145, Second Dept 1-14-26

Practice Point: Here the trial judge engaged in questioning of witnesses which took on the function and appearance of an advocate, depriving defendant of a fair trial. Although the issue was not preserved, the appeal was considered in the interest of justice.

 

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