People v. Charleston

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: COOKE
• Citation: People v. Charleston, 56 N.Y.2d 886, 453 N.Y.S.2d 399 (N.Y. 1982)
• Decision Date: 15 June 1982
• Parties: , 438 N.E.2d 1114 The PEOPLE of the State of New York, Respondent, v. James CHARLESTON, Appellant.

Page 399

453 N.Y.S.2d 399

56 N.Y.2d 886, 438 N.E.2d 1114

The PEOPLE of the State of New York, Respondent, v. James CHARLESTON, Appellant.

Court of Appeals of New York.

June 15, 1982.

Laurence B. Liebowitz, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty., (Charles E. Knapp and Norman Barclay, New York City, of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division, 81 A.D.2d 1045, 440 N.Y.S.2d 800, should be affirmed.

Defendant was convicted, after a jury trial, of attempted murder in the second degree, attempted robbery in the first degree, and criminal possession of a weapon in the second degree. On this appeal, he argues that the Trial Judge's extensive participation in the questioning of witnesses deprived him of a fair trial. That claim, however, is not adequately preserved for this court's review.

A question of law for review in this court is presented on a claim of excessive interference by the Trial Judge when there has been an objection at trial in some form sufficient to give the Judge an opportunity to correct the problem or when it is clear from the record that objection would have been unavailing. As the court recognized in People v. Yut Wai Tom, 53 N.Y.2d 44, 55, 439 N.Y.S.2d 896, 422 N.E.2d 556. "Because a court is entitled to question witnesses to clarify testimony and to facilitate the progress of the trial, a defense attorney cannot be expected to enter an objection to the Trial Judge's conduct at the first sign of judicial overbearance." Nonetheless, after it becomes "clear that the Judge intends to exceed his permissible role and assume the advocate's function" 53 N.Y.2d, at p. 55, 439 N.Y.S.2d 896, 422 N.E.2d 556, it is incumbent upon defense counsel at least to attempt to register some protest to that conduct to preserve the matter for appellate review. In addition, the objection or objections must be of a nature to apprise the Trial Judge...