
    The People of the State of New York, Respondent, v. Valentine Mendes, Appellant.
    Submitted April 8, 1957;
    decided July 3, 1957.
    
      David T. Berman for appellant.
    
      Edward S. Silver, District Attorney (William I. Siegel of counsel), for respondent.
   Burke, J.

Defendant has been convicted of assault in the second degree. During the course of the trial the Judge interrogated a number of defendant’s witnesses as well as the accused himself. Objections and motions for a mistrial on the ground that portions of these interrogations might prove prejudicial were denied. In our judgment defendant’s objections were well taken and for that reason his conviction is reversed and a new trial ordered.

It is well known that a Trial Judge in criminal matters may take an active part in the examination of witnesses where questioning is necessary to elicit significant facts, to clarify or enlighten an issue or merely to facilitate the orderly and expeditious progress of the trial (People v. Knapper, 230 App. Div. 487, 489-490; People v. Ohanian, 245 N. Y. 227, 232). 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. Particularly is this true in a case like the one at hand where the balance and weight of the evidence are such as to enhance the possibility that the stated opinion of the trial court ®r even the suggestion of an opinion might be seized upon by the jury and eventually prove decisive. Fortunately the Trial Judge here and the vast majority of the Judges of the criminal courts of our State have proven themselves admirably competent in the recognition of and protection against this danger. But there are occasions where an overly diligent effort at evincing the truth results in an impropriety or improprieties which, while unwitting, are sufficiently serious to warrant a new trial. In the case at Bar a number of questions by the Trial Judge, many of them rhetorical, directed at defendant’s witnesses were of such a nature as to indicate a communicable disbelief of their testimony. These questions posed the threat of a cumulative adverse effect on defendant’s position which, under the circumstances of this case, cannot be ignored. Undoubtedly the force of these remarks in the hurry and heat of the trial was not weighed by the Judge and under different circumstances might not even be deemed so grave as to vitiate the conviction. But where, as here, the case was a particularly close one and the proof was such as to give serious jurors pause, we think it is the safer course to grant a new trial (People v. Viscio, 241 App. Div. 499, 501; People v. Hill, 37 App. Div. 327; People v. Leavitt, 301 N. Y. 113, 117; McIntosh v. State, 140 Ala. 137; Laycock v. People, 66 Col. 441).

The judgment of conviction of the defendant Valentine Mendes should be reversed and a new trial ordered.

Desmond, J. (dissenting).

I dissent. There is no power and no precedent in this court for the reversal of a conviction on the ground that some of the Trial Judge’s questions to defendant and his witnesses “ were of such a nature as to indicate a communicable disbelief of their testimony”. Such a rule for the conduct of Trial Judges has never existed and would be unworkable and not in the public interest. It would forbid a Trial Judge asking any but the most insipid and formal questions. He would be unable to apply his own experience, ability and skill to the fact inquiry under way or to aid the jury in the discovery of the truth.

“ The trial judge is something more than a mere automaton ” (People v. Ohanian, 245 N. Y. 227, 232). In the Ohanian case there was a reversal but not on the ground that the Judge by questions suggested doubt as to some of the testimony of defendant’s witnesses. The Trial Judge in Ohanian “by repeated comments and his charge ” actually “ assumed the falsity of the defense ” (p. 230). He took from the jury the fact question of defendant’s guilt and gave lip service only to presumption of innocence and reasonable doubt.

As this court’s opinion in that case is at pains to make clear, Ohanian was a most extreme and unique instance of a Judge literally forcing on the jurors his own opinion as to the defendant’s guilt. There is nothing like that in the present record. The Trial Judge in this case probed the testimony of the witnesses — cross-examined them, if you will. Perhaps he should have asked fewer such questions but we do not sit to review judicial manners or to count the number of questions asked by a Judge. In noncapital criminal cases like this ours is a court of law and we have no general supervision over the conduct of trials. “ The question whether defendant had a fair trial is primarily, at least, one for the trial court and secondarily, for the Appellate Division. If no error of law is presented * * * the judgment must be affirmed here ” (People v. Ohanian, 245 N. Y. 227, 232, supra). I do not think it is an error of law for a Trial Judge to ask more or sharper questions than we think were needed.

The judgment should be affirmed.

Conway, Ch. J., Froessel and Van Voorhis, JJ., concur with Burke, J.; Desmond, J., dissents in an opinion in which Dye and Fuld, JJ., concur.

Judgments reversed and a new trial ordered.  