People v. Melendez

• Decision Date: 28 May 1996
• Citation: 643 N.Y.S.2d 607,227 A.D.2d 646
• Parties: The PEOPLE, etc., Respondent, v. Rafael MELENDEZ, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 607

643 N.Y.S.2d 607

227 A.D.2d 646

The PEOPLE, etc., Respondent, v. Rafael MELENDEZ, Appellant.

Supreme Court, Appellate Division Second Department.

May 28, 1996.

Proskauer Rose Goetz & Mendelsohn L.L.P., New York City (Robert A. Mandel and William E. Hellerstein, of counsel) and Daniel L. Greenberg, New York City, for appellant (one brief filed).

Charles J. Hynes, District Attorney, Brooklyn (Roseann B. MacKechnie and David O. Leiwant, of counsel), for respondent.

Before ROSENBLATT, J.P., and MILLER, O'BRIEN and McGINITY, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Rappaport, J.), rendered May 14, 1994, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress statements made by him to the police.

ORDERED that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and the indictment is dismissed, without prejudice to the People to re-present any appropriate charges to another Grand Jury (see, People v. Beslanovics, 57 N.Y.2d 726, 454 N.Y.S.2d 976, 440 N.E.2d 1322); and it is further,

ORDERED that upon service upon him of a copy of this decision and order, with notice of entry, the official having custody of the defendant's person is directed to produce him, forthwith, before the Supreme Court, Kings County, at which time that court shall issue a securing order pursuant to CPL 470.45, either releasing the defendant on his own recognizance or fixing bail or committing him to the custody of the New York City Department of Correctional Services pending resubmission of the case to the Grand Jury and the Grand Jury's disposition thereof (cf., CPL 210.45[9] ). Such securing order shall remain in effect until the first to occur of any of the following: (a) a statement to the court by the People that they do not intend to resubmit the case to the Grand Jury, (b) arraignment of the defendant upon an indictment filed as a result of resubmission of the case to a Grand Jury, (c) the filing with the court of a Grand Jury dismissal of the case following resubmission thereof, or (d) the expiration of a period of 45 days from the date of this decision and order, provided that such period may, for good cause shown, be extended by the Supreme Court, Kings County, to a designated subsequent date if such be necessary to accord the People a reasonable opportunity to resubmit the case to a Grand Jury.

The record establishes that the defendant voluntarily accompanied the police to the precinct and voluntarily remained there until his arrest. Since "[c]onsent is a valid substitute for probable cause" (People v. Hodge, 44 N.Y.2d 553, 559, 406 N.Y.S.2d 736, 378 N.E.2d 99), the defendant's inculpatory statements were properly received at trial (People v. Vogler, 201 A.D.2d 890, 607 N.Y.S.2d 788; People v. Langdon, 188 A.D.2d 1036, 592 N.Y.S.2d 1003; People v. Denis, 181 A.D.2d 1017, 1018, 582 N.Y.S.2d 310).

Nevertheless, we do agree that the defendant was denied a fair trial as a result of the manner in which the court presided over his trial. The proper role of a Trial Justice is "neither that of automaton nor advocate" (People v. Yut Wai Tom, 53 N.Y.2d 44, 56, 439 N.Y.S.2d 896, 422 N.E.2d 556). A Justice is generally not precluded from taking an active role in the truth-seeking process (People v. Jamison, 47 N.Y.2d 882, 883, 419 N.Y.S.2d 472, 393 N.E.2d 467) and indeed, may take the initiative to clarify confusing testimony and facilitate the orderly and expeditious progress of the trial (see, People v. Watts, 159 A.D.2d 740, 553 N.Y.S.2d 213; People v. Cooper, 96 A.D.2d 866, 465 N.Y.S.2d 755). However, this power is one that should be exercised sparingly (People v. Yut Wai Tom, 53 N.Y.2d 44, supra, at 57, 439 N.Y.S.2d 896, 422 N.E.2d 556), and must be properly circumscribed so as not to result in the court taking an adversarial position (People v. Cooper, supra; People v. Tucker, 89 A.D.2d 153, 455 N.Y.S.2d 1). While the court may pose appropriate questions (People v. Moulton, 43 N.Y.2d 944, 945, 403 N.Y.S.2d 892, 374 N.E.2d 1243), it has been recognized that a Justice'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" (People v. Yut Wai Tom, supra, at 57, 439 N.Y.S.2d 896, 422 N.E.2d 556). Most importantly, when choosing to pose questions, a Justice must not do so "in a manner from which a jury will gain the impression of [the] existence of an opinion on the part of the court as to the credibility of the testimony of any witness or the merits of any issue in the case" (People v. Moulton, 43 N.Y.2d 944, supra, at 945, 403 N.Y.S.2d 892, 374 N.E.2d 1243).

In the case at bar, the Trial Justice repeatedly interrupted the prosecutor and made numerous unwarranted inquiries of witnesses. Indeed, the record demonstrates that when the court was dissatisfied with the course of examination of a witness, the court essentially assumed the role of prosecutor and asked the questions which it believed needed to be asked. The court likewise assumed control of defense counsel's cross-examination of prosecution...