THE JUDGE ENGAGED IN EXCESSIVE AND PREJUDICIAL QUESTIONING OF TRIAL WITNESSES DEPRIVING DEFENDANT OF A FAIR TRIAL; THE “ERROR” WAS NOT PRESERVED; THE COURT EXERCISED ITS “INTEREST OF JUSTICE” JURISDICTION TO CONSIDER THE ISSUE AND REVERSE (SECOND DEPT).

The Second Department, reversing the judgments of conviction and ordering a new trial, determined the judge engaged in excessive and prejudicial questioning of witness depriving defendant of a fair trial. The “error” was not preserved but the Second Department exercised their interest of justice jurisdiction:

… [T]here must be a new trial, before a different Justice, because the Supreme Court conducted excessive and prejudicial questioning of trial witnesses. Here, the court interjected itself into the questioning of multiple witnesses and generally created the impression that it was an advocate for the People … . Although the defendant failed to preserve his claim that he was deprived of a fair trial because the court interfered with the questioning of witnesses (see CPL 470.05[2]), based on the circumstances of this case, we reach this contention in the exercise of our interest of justice jurisdiction … . People v Chimborazo, 2026 NY Slip Op 06132, Second Dept 10-21-26

Practice Point: Appellate courts will reverse a conviction if the judge intervenes too much with prejudicial questioning of witnesses, even where the issue is not preserved.