OPINION OF THE COURT
Lynch, J.
The defendant was convicted after a jury trial of murder in the second degree for having caused the death by stabbing of Gordon Evans. We find that the excessive interference of the Trial Judge in the conduct of the trial and his repeated assumption of the role of the prosecutor seriously prejudiced the defendant so that the conviction must be reversed and a new trial ordered.
[154]*154In People v Ellis (62 AD2d 469, 470) this court held: “A Trial Judge in a criminal action is not merely an observer nor only a referee. It is the Judge’s duty to assume an active role in the examination of witnesses where proper or necessary to elicit or develop significant facts, to clarify or enlighten an issue, or to facilitate or expedite the orderly progress of the trial * * * ‘However, because of the ever present and serious threat that a jury’s determination may be influenced by what it interprets to be the court’s own opinion, this prerogative should be exercised with caution.’ * * * Where the Trial Judge oversteps the bounds and assumes the role of a prosecutor, however well intentioned the motive there is a denial of a fair trial and there must be a reversal.”
More recently the Court of Appeals in People v Yut Wai Tom (53 NY2d 44) discussed and condemned particular instances of Trial Judge interference and thus drew boundaries which if exceeded would warrant reversal of a conviction. On the trial of this action, the Trial Judge violated nearly every standard of conduct set forth in Yut Wai Tom.
Yut Wai Tom (supra, p 57) cautioned that “[a] Trial Judge’s examination of witnesses carries with it so many risks of unfairness that it should be a rare instance when the court rather than counsel examines a witness”. Here; the Trial Judge did not exercise sparingly his power to examine the witnesses. He questioned each one of them, some at great length, not waiting for the attorneys to develop or refute a point, but interjecting himself into their questioning whenever it suited his compulsion.
Yut Wai Tom (supra, p 57) points out the risk of unfairness “where the court elicits crucial incriminating testimony on direct examination [because] the witness may be less likely to change his testimony on cross-examination”. Here, by his own questioning, the Trial Judge established: that a letter opener the defendant was claimed to have habitually carried on his person was intended by him to be a weapon; that it was seen on the defendant up to the date of the stabbing but it was not seen after the stabbing; that the fatal wound to the victim could have been caused by the letter opener. Apart from thus taking over the role of prosecutor, the Trial Judge, by developing this crucial [155]*155testimony from his own questioning, put defense counsel to an unfair disadvantage specifically noted in Yut Wai Tom, namely that an objection by counsel might antagonize the Judge or create for the jury an impression that counsel was trying to hide the truth.
The disadvantage to defense counsel was compounded when the Trial Judge’s questions led the witnesses in a fashion that no Judge would have permitted to an attorney. The court questioned the witness Blackwell who, unaided, was able only to state that the defendant had shown him the letter opener “maybe about a month before” the stabbing. It was the Judge who supplied the telling evidence in his next question, “You saw it a month before, then closer to the time of Gordon Evan’s death and then closer still”, to which the witness answered, “Yes”. The Trial Judge supplied similar crucial evidence to the witness Shelton. The latter testified that over the 10 years he had known the defendant he had seen him with the letter opener three or four times and that this occurred over the period of a year. The court then continued questioning:
“the court: Over a period of one year?
“the witness: Yes
“the court: In other words, from ’76 to’77?
“the witness: Yes
“the court: ’76 up to February 8th, ’77 [the date of the stabbing]?
“the witness: Yes.”
Another unfairness condemned by Yut Wai Tom (supra, p 57) is for the Trial Judge to conduct “a running redirect examination during defense counsel’s cross, thereby rendering it ineffective”. Here, an elevator operator testified on direct that on the day of the stabbing he took the defendant, a frequent passenger, to the victim’s floor. The operator also described other passengers who were in the elevator that day with the defendant. To attack his credibility, the defense counsel on cross-examination got the operator to admit that he could not remember if passengers were present on other occasions when the defendant was in [156]*156his elevator. Immediately, without waiting for cross-examination to conclude or giving an opportunity for redirect, the Trial Judge leaped into the breach to rehabilitate the witness by questions designed to show that he had reason to remember the particular occasion by the defendant’s conduct on the elevator and the stabbing later that day. In similar fashion, the court took over the rehabilitation of the witness Lafurn.
Another example of the court’s taking over the role of prosecutor occurred when defense counsel objected for lack of foundation to admission into evidence of handwritten notes sought to be attributed to the victim. The court immediately took over the questioning of the witness to lay the foundation and then, satisfied with his own efforts, overruled the objection.
One of the risks of judicial questioning of witnesses recognized by Yut Wai Tom (supra, p 57) is “that the Trial Judge will inadvertently convey to the jury his disbelief of a witness, not only by his reaction to answers, but by his phrasing of questions and tone of voice”. Here it was important for the defense that the jury believe that the defendant had been with Tommy Hunt at a Chock-Full-O’Nuts on the day of the stabbing, February 8, 1977. Hunt had denied such a meeting, testifying that he had been out of the country from 1969 to 1979. The defendant had difficulty putting to the jury coherent testimony on this point because he was constantly interrupted by questions from the court. Some of the questions left little doubt that the court was incredulous.
“the court: Was that the Tommy Hunt — The Tommy Hunt that was on the stand, is that the Tommy Hunt you say you met in Chock Full O’Nuts?
“the witness: That’s the Tommy Hunt.
“the court: That Tommy Hunt?
“the witness: That Tommy Hunt.
“the court: All right * * *
“the court: You saw him in Chock Full O’Nuts on February 8th?
“the witness: February 8th.
[157]*157“the court: 1977?
“the witness: Right.
“the court: Chock Full O’Nuts, 50th Street and Broadway?
“the witness: Right.
“the court: City of New York?
“the witness: Right.
“the court: Right here in the city?
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION OF THE COURT
Lynch, J.
The defendant was convicted after a jury trial of murder in the second degree for having caused the death by stabbing of Gordon Evans. We find that the excessive interference of the Trial Judge in the conduct of the trial and his repeated assumption of the role of the prosecutor seriously prejudiced the defendant so that the conviction must be reversed and a new trial ordered.
[154]*154In People v Ellis (62 AD2d 469, 470) this court held: “A Trial Judge in a criminal action is not merely an observer nor only a referee. It is the Judge’s duty to assume an active role in the examination of witnesses where proper or necessary to elicit or develop significant facts, to clarify or enlighten an issue, or to facilitate or expedite the orderly progress of the trial * * * ‘However, because of the ever present and serious threat that a jury’s determination may be influenced by what it interprets to be the court’s own opinion, this prerogative should be exercised with caution.’ * * * Where the Trial Judge oversteps the bounds and assumes the role of a prosecutor, however well intentioned the motive there is a denial of a fair trial and there must be a reversal.”
More recently the Court of Appeals in People v Yut Wai Tom (53 NY2d 44) discussed and condemned particular instances of Trial Judge interference and thus drew boundaries which if exceeded would warrant reversal of a conviction. On the trial of this action, the Trial Judge violated nearly every standard of conduct set forth in Yut Wai Tom.
Yut Wai Tom (supra, p 57) cautioned that “[a] Trial Judge’s examination of witnesses carries with it so many risks of unfairness that it should be a rare instance when the court rather than counsel examines a witness”. Here; the Trial Judge did not exercise sparingly his power to examine the witnesses. He questioned each one of them, some at great length, not waiting for the attorneys to develop or refute a point, but interjecting himself into their questioning whenever it suited his compulsion.
Yut Wai Tom (supra, p 57) points out the risk of unfairness “where the court elicits crucial incriminating testimony on direct examination [because] the witness may be less likely to change his testimony on cross-examination”. Here, by his own questioning, the Trial Judge established: that a letter opener the defendant was claimed to have habitually carried on his person was intended by him to be a weapon; that it was seen on the defendant up to the date of the stabbing but it was not seen after the stabbing; that the fatal wound to the victim could have been caused by the letter opener. Apart from thus taking over the role of prosecutor, the Trial Judge, by developing this crucial [155]*155testimony from his own questioning, put defense counsel to an unfair disadvantage specifically noted in Yut Wai Tom, namely that an objection by counsel might antagonize the Judge or create for the jury an impression that counsel was trying to hide the truth.
The disadvantage to defense counsel was compounded when the Trial Judge’s questions led the witnesses in a fashion that no Judge would have permitted to an attorney. The court questioned the witness Blackwell who, unaided, was able only to state that the defendant had shown him the letter opener “maybe about a month before” the stabbing. It was the Judge who supplied the telling evidence in his next question, “You saw it a month before, then closer to the time of Gordon Evan’s death and then closer still”, to which the witness answered, “Yes”. The Trial Judge supplied similar crucial evidence to the witness Shelton. The latter testified that over the 10 years he had known the defendant he had seen him with the letter opener three or four times and that this occurred over the period of a year. The court then continued questioning:
“the court: Over a period of one year?
“the witness: Yes
“the court: In other words, from ’76 to’77?
“the witness: Yes
“the court: ’76 up to February 8th, ’77 [the date of the stabbing]?
“the witness: Yes.”
Another unfairness condemned by Yut Wai Tom (supra, p 57) is for the Trial Judge to conduct “a running redirect examination during defense counsel’s cross, thereby rendering it ineffective”. Here, an elevator operator testified on direct that on the day of the stabbing he took the defendant, a frequent passenger, to the victim’s floor. The operator also described other passengers who were in the elevator that day with the defendant. To attack his credibility, the defense counsel on cross-examination got the operator to admit that he could not remember if passengers were present on other occasions when the defendant was in [156]*156his elevator. Immediately, without waiting for cross-examination to conclude or giving an opportunity for redirect, the Trial Judge leaped into the breach to rehabilitate the witness by questions designed to show that he had reason to remember the particular occasion by the defendant’s conduct on the elevator and the stabbing later that day. In similar fashion, the court took over the rehabilitation of the witness Lafurn.
Another example of the court’s taking over the role of prosecutor occurred when defense counsel objected for lack of foundation to admission into evidence of handwritten notes sought to be attributed to the victim. The court immediately took over the questioning of the witness to lay the foundation and then, satisfied with his own efforts, overruled the objection.
One of the risks of judicial questioning of witnesses recognized by Yut Wai Tom (supra, p 57) is “that the Trial Judge will inadvertently convey to the jury his disbelief of a witness, not only by his reaction to answers, but by his phrasing of questions and tone of voice”. Here it was important for the defense that the jury believe that the defendant had been with Tommy Hunt at a Chock-Full-O’Nuts on the day of the stabbing, February 8, 1977. Hunt had denied such a meeting, testifying that he had been out of the country from 1969 to 1979. The defendant had difficulty putting to the jury coherent testimony on this point because he was constantly interrupted by questions from the court. Some of the questions left little doubt that the court was incredulous.
“the court: Was that the Tommy Hunt — The Tommy Hunt that was on the stand, is that the Tommy Hunt you say you met in Chock Full O’Nuts?
“the witness: That’s the Tommy Hunt.
“the court: That Tommy Hunt?
“the witness: That Tommy Hunt.
“the court: All right * * *
“the court: You saw him in Chock Full O’Nuts on February 8th?
“the witness: February 8th.
[157]*157“the court: 1977?
“the witness: Right.
“the court: Chock Full O’Nuts, 50th Street and Broadway?
“the witness: Right.
“the court: City of New York?
“the witness: Right.
“the court: Right here in the city?
“the witness: Manhattan.”
The dissent notes that the Trial Judge improperly implied in one of his questions that the letter opener was blunt on one edge and sharp on the other. It concedes this to be “troublesome”, as indeed it is, because there was no evidence in the record of these characteristics of the letter opener and the Trial Judge in effect supplied this evidence to the prosecutor’s case (just as he supplied evidence in examining Blackwell and Shelton). This is serious error. The dissent would, however, discount it, finding the defendant’s guilt without reasonable doubt. But this judgment must have been made in the context of the trial as it was conducted. We stress the finding that had the trial been free of these errors and the other devastating incursions of the Trial Judge the defendant would have had a fair opportunity to persuade the jury of reasons to doubt his guilt. As it was, he was denied this chance.
People v Charleston (56 NY2d 886), relied upon by the dissent, does not require a different result. It holds that a failure by defense counsel to object to judicial interference does not preserve a question of law for appellate review. Absent a question of law, the record here constrains us to reverse as a matter of discretion in the interest of justice. Also, because the determination of prejudice through judicial interference demands a qualitative and quantitative measurement (People v Yut Wai Tom, supra, p 55), Charleston is not absolute in its terms. Where, as here, the conduct complained of represents a gradual accumulation of judicial interjection which in totality is prejudicial, a difficult if not impossible burden is cast upon defense counsel to know at what point to object. This is an “extreme [158]*158form” of conduct which Charleston finds (p 888) “might excuse a defendant’s failure to make an appropriate objection”. Charleston also excuses lack of objection (p 887) “when it is clear from the record that objection would have been unavailing”. There is no reason to believe that had objection been made during the trial, the Trial Judge would have felt any differently than he did when his conduct was made a basis for a motion to set aside the verdict, namely that what he did was a part of his duty “to prevent confusion and to aid and assist in the search for the truth”.
Judgment, Supreme Court, New York County (B. Roberts, J.), rendered March 28, 1979, convicting defendant after a jury trial of murder in the second degree and sentencing him to a prison term of 15 years to life should be reversed, on the law and as a matter of discretion in the interest of justice, and a new trial directed before another Justice.