People v. Ellis

• Decision Date: 16 May 1978
• Citation: 404 N.Y.S.2d 862,62 A.D.2d 469
• Parties: The PEOPLE of the State of New York, Respondent, v. Vernon ELLIS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 862

404 N.Y.S.2d 862

62 A.D.2d 469

The PEOPLE of the State of New York, Respondent, v. Vernon ELLIS, Defendant-Appellant.

Supreme Court, Appellate Division,First Department.

May 16, 1978.

Bennett L. Gershman, White Plains (Lawrence S. Goldman, New York City, with him, on brief), for defendant-appellant.

Charles H. Solomon, New York City, of counsel (Robert M. Pitler, New York City, with him, on brief, Robert M. Morgenthau, Dist. Atty.), for respondent.

Before LUPIANO, J. P., and FEIN, MARKEWICH, SANDLER and SULLIVAN, JJ.

PER CURIAM:

Defendant was convicted following a lengthy trial arising out of the shooting of George Dixon on March 25, 1973. Dixon was found on the fifth floor of an apartment at 24 Lenox Avenue after an argument and fight among defendant, Dixon, Tyrone Davis and Willie Love. Shortly thereafter defendant was found hiding on the roof of the building and was arrested. Also found on the roof were the murder weapon and a tasseled hat allegedly belonging to defendant.

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 (People v. Moulton, 43 N.Y.2d 944, 403 N.Y.S.2d 892, 374 N.E.2d 1243; People v. DeJesus, 42 N.Y.2d 519, 399 N.Y.S.2d 196, 369 N.E.2d 752; People v. Carter, 40 N.Y.2d 933, 389 N.Y.S.2d 835, 358 N.E.2d 517; People v. Gonzalez, 38 N.Y.2d 208, 379 N.Y.S.2d 397, 341 N.E.2d 822). "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." (People v. Mendes, 3 N.Y.2d 120, 121, 164 N.Y.S.2d 401, 402, 143 N.E.2d 806, 807). 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. (People v. DeJesus, 42 N.Y.2d 519, 399 N.Y.S.2d 196, 369 N.E.2d 752).

Here, we have concluded that the trial justice unduly injected himself into the proceeding to such an extent as to deny defendant a fair and impartial trial. (See People v. Ohlstein, 54 A.D.2d 109, 387 N.Y.S.2d 860). His excessive questioning and examination of witnesses, including the defendant who testified in his own behalf, not only with respect to the merits of the case but also respecting their credibility could not help but make him appear to be an advocate rather than an impartial arbiter. It plainly and improperly conveyed to the jury the court's attitude as to the merits of the case as well as the credibility of the witnesses. (People v. Carter, supra ; People v. Tartaglia, 35 N.Y.2d 918, 364 N.Y.S.2d 901, 324 N.E.2d 368; People v. Harris, 44 A.D.2d 809, 355 N.Y.S.2d 770).

The trial justice's interrogation of defendant with respect to the ownership of the hat which had been found on the roof of the building by the arresting officer may very well have impelled the jury to the belief that the court had an opinion that the defendant was culpable. The hat was crucial on the issue of the identity of Dixon's assailant. The questions related to whether the defendant had acknowledged the hat was his or had merely accepted it from the...