People v. De Jesus

Decision Date18 October 1977
Parties, 369 N.E.2d 752 The PEOPLE of the State of New York, Respondent, v. Freddie DE JESUS, Appellant.
CourtNew York Court of Appeals Court of Appeals

Susan V. Tipograph, New York City, for appellant.

Eugene Gold, Dist. Atty. (Jane S. Meyers, Brooklyn, of counsel), for respondent.

COOKE, Judge.

"It is 'the law of the land' that no man's life, liberty or property be forfeited as a punishment until there has been a charge fairly made and fairly tried in a public tribunal" (Matter of Oliver, 333 U.S. 257, 278, 68 S.Ct. 499, 510, 92 L.Ed. 682). Such a right constitutes the most fundamental of all freedoms (Estes v. Texas, 381 U.S. 532, 540, 85 S.Ct. 1628, 14 L.Ed.2d 543). The underlying issue here is whether defendant Freddie De Jesus was deprived of such a trial.

The prosecution's proof indicated that at about 10:45 during the evening of August 30, 1972, while bakery truck driver Stephen Drowns waited in his halted vehicle for the gates of Levy's Bakery to open, two youths approached the truck for the ostensible purpose of obtaining cake or doughnuts. When Drowns said he had no extra cake to give them and that he would ask the platform man at Levy's if he had extra doughnuts, defendant slid through a truck door and placed a knife to the driver's left side and held the driver back in the seat. One of the boys asked for "the money" and, when Drowns blew the horn, defendant told him to stop or he would put the knife through him. The other boy stood at the side of the truck near the door, held an unidentifiable object in his hand and threatened to blow Drown's head off if he did not move fast. Drowns' wallet and watch were seized and the two assailants ran around a corner and into one of Brooklyn's streets. In a station house lineup Drowns identified defendant as one of the participants. This identification was confirmed on trial by testimony of a bakery security guard, who knew defendant from the vicinity, that he observed defendant on a stoop across from the bakery moments before the alleged robbery.

Defendant presented an alibi defense, offering his own testimony and that of his girl friend and sister-in-law in support of his contention that he never left his apartment on the evening in question. It was related that defendant's brother, Richard De Jesus, was in and out of the apartment during the evening, but said brother was not called as a witness.

Defendant was convicted, after verdict, of robbery in the first degree, robbery in the second degree and grand larceny in the third degree. The Appellate Division affirmed, without opinion, two Justices dissenting. The dissent concluded that throughout the trial the Judge continually demonstrated manifest and open hostility toward defense counsel; that error was committed in allowing to stand uncorrected the prosecutor's intimation during summation that, if acquitted, the defendant would be back on the street hurting others; and that, although not raised on appeal, 1 the prosecutor should not have commented during summation on the failure of the defendant to produce his brother as an alibi witness, since the alleged accomplice was his brother whose case had been handled in Family Court because of his age.

I

The trial was punctuated by the trial court's frequent caustic, if not snide and sarcastic, remarks directed at defense counsel. Taken out of context for the sake of brevity, these comments in the jury's presence, included expressions such as:

"You're putting words in his (the witness') mouth, and everybody can see it, Mr. Wagner (on cross-examination)";

"You know your questions are inaccurate (on cross-examination)";

"Let's not be playing any games";

"You're leading to beat the band";

"And I don't need any help from you";

"Are you going to have a play on words now?"

"This is cross examination, and you know it. There is a lot more latitude on cross examination than direct, and this is cross examination, and you heard me rule like this many times. It doesn't come as any surprise to you";

"Oh, come on. Try this case (after defense counsel requested a brief conversation at the bar)";

"It is not good enough then, Mr. Wagner and you know better. You're not inexperienced (after defense counsel asked an alibi witness where she was the day before defendant's arrest)";

"Are you such a creature of bad habits, I mean, legally speaking, that you just persist?"

"I said exception. You are going to learn how to take a ruling from a Court if it's the last thing you learn and I trust it won't be the last. I hope you're around longer than that. Now come on."

"That's two questions in one. (Mr. Wagner: Withdrawn.) And you knew you framed it this way";

"I can't understand you and some of your tactics";

"Let's have no crack out of you like that";

"I don't care what you've (defense counsel) ever seen. In all my practice of law, I've never seen some of the things I've seen in this trial. (Mr. Wagner: Both sides, admittedly?) * * * From you particularly. (Mr. Wagner: Your characterization I take exception to.) * * * You have it. You can review my conduct any time you want. They'll review yours at the same time";

"You'll learn to take a ruling, or I'll send you right over to the Appellate Division. Now, you do this in every trial. Now, you'll take a ruling when I rule. You have your exception. Sit down. (Mr. Wagner: You never let me make argument.) You sit down, sir, and don't you answer back. You had better learn something about conduct of a lawyer during trial, and I'm trying and I'm tired of trying to teach you."

The conduct of defense counsel did not warrant or justify the extent of this treatment nor the hostility which met his exceptions, offered in a gentlemanly manner, to the charge in the jury's presence.

"The right of every person accused of crime to have a fair and impartial trial before an unbiased court and an unprejudiced jury is a fundamental principle of criminal jurisprudence" (People v. McLaughlin, 150 N.Y. 365, 375, 44 N.E. 1017, 1019; see, also, People v. Crimmins, 36 N.Y.2d 230, 238, 367 N.Y.S.2d 213, 218, 326 N.E.2d 787, 791). It is to be accomplished in surroundings in which both the accused and the prosecution enjoy the unfettered attention of the jury, to the end that the resulting verdict will be the product solely of evidence adduced on the witness stand (see Sheppard v. Maxwell, 384 U.S. 333, 350-351, 86 S.Ct. 1507, 16 L.Ed.2d 600; Estes v. Texas, 381 U.S. 532, 540-541, 85 S.Ct. 1628, 14 L.Ed.2d 543, supra; People v. Sher, 24 N.Y.3d 454, 457, 301 N.Y.S.2d 46, 47, 248 N.E.2d 887, 888). Recognizing that juries are " 'extremely likely to be impregnated by the environing atmosphere' " (Turner v. Louisiana, 379 U.S. 466, 472, 85 S.Ct. 546, 549, 13 L.Ed.2d 424, quoting dissent in Frank v. Mangum, 237 U.S. 309, 349, 35 S.Ct. 582, 59 L.Ed. 969 (Holmes, J.)), "(c)riminal trials are to be so conducted that the proof will be legal evidence, unimpaired by intemperate conduct * * * and irrelevant asides, all of which obfuscate the development of factual issues and sidetrack the jury from its basic mission of determining the facts relevant to guilt or innocence" (People v. Alicea, 37 N.Y.2d 601, 605, 376 N.Y.S.2d 119, 123, 338 N.E.2d 625, 628).

Neither the nature of our adversary system in which facts are elicited and determined nor the constitutional command to afford a fair trial inhibit a Trial Judge from assuming an active role in the resolution of the truth (see People v. Mendes, 3 N.Y.2d 120, 121, 164 N.Y.S.2d 401, 402, 143 N.E.2d 806, 807; People v. Ohanian, 245 N.Y. 227, 232, 157 N.E. 94, 96). Indeed, as part of the responsibility of insuring a fair trial, he may seize the affirmative, when proper and necessary, to clarify perplexing issues, to develop significant factual information, to enforce propriety, orderliness, decorum and expedition in trial (People v. Gonzalez, 38 N.Y.2d 208, 210, 379 N.Y.S.2d 397, 398, 341 N.E.2d 822; People v. Hinton, 31 N.Y.2d 71, 76, 334 N.Y.S.2d 885, 889, 286 N.E.2d 265, 267; People v. Singletary, 54 A.D.2d 767, 387 N.Y.S.2d 878; People v. Russo, 46 A.D.2d 904, 905, 362 N.Y.S.2d 191, 192, aff'd 41 N.Y.2d 1091, 396 N.Y.S.2d 353, 364 N.E.2d 1124). A correct verdict is not assured at the hands of an unbiased, though bewildered, jury.

While such an active participation is not foreclosed, care should be assiduously exercised lest the Trial Judge's conduct, in the form of words, actions or demeanor, does not divert or itself become an irrelevant subject of the jury's focus (see People v. Carter, 40 N.Y.2d 933, 389 N.Y.S.2d 835, 358 N.E.2d 517; People v. Budd, 38 N.Y.2d 988, 384 N.Y.S.2d 435, 348 N.E.2d 911; People v. Robinson, 53 A.D.2d 898, 385 N.Y.S.2d 374; People v. Matos, 46 A.D.2d 903, 362 N.Y.S.2d 32). Stationed above the clamor of counsel or the partisan pursuit of procedural or substantive advantage, the Judge functions in the critical area of regulating the proceedings so as to guide the jury beyond distracting influences and to a reasoned determination on the facts. In this function, the Bench must be scrupulously free from and above even the appearance or taint of partiality (see People v. Hommel, 41 N.Y.2d 427, 429, 393 N.Y.S.2d 371, 372, 361 N.E.2d 1020, 1021). Unnecessary and excessive interference in the presentation of proof, as well as the intimidation or denigration of counsel, particularly in the jury's presence, are to be avoided. Since the presence of the Judge is likely to be equated with the majesty of the law itself, 2 inappropriate remarks which might throw the scales out of balance should be omitted and "care must be taken to guard against 'the possibility that the stated opinion of the trial court or even the suggestion of an opinion might be seized upon by the jury and eventually prove decisive' " (People v. Bell, 38 N.Y.2d 116, 120, 378 N.Y.S.2d 686, 690, 341 N.E.2d 246, 248).

It is not imperative here, as in most similar situations, that there be...

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