Criminal Possession of Weapon Overturned - Court Questioning so Prejudicial to Require New Trial und

Students, citizens and people who study American Law often hear that one is "innocent until proven guilty" and rather a (_____insert number here_____ ) "criminals should be freed rather than one innocent man (or woman) suffer." In reality, New York Criminal Defendants often face a system predisposed to plea bargaining (over 96%), defendants who suffer restrictions on their liberty (from orders of protection to bail) based on sworn accusations and, as seen in this case, a system of justice that may not adequately protect his or her rights until appellate review. Luckily for the defendant, and for the purposes of this blog, the appeal is taken in People v. Davis, a case which reverses a New York Criminal Defendant's conviction on the basis of, inter alia, "prejudicial questioning of trial witnesses."

The New York Defendant (Queens County) was tried by a jury that convicted him of "criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and resisting arrest." What happened here was that the judge, a former assistant district attorney,:

conducted excessive and prejudicial questioning of trial witnesses, warranting a new trial. Although defense counsel did not object to the questioning of witnesses by the court, we reach this contention in the exercise of our interest of justice jurisdiction (see CPL 470.15 [6] [a]; see also People v Yut Wai Tom, 53 NY2d 44, 55 [1981]). "[W]hile a trial judge may intervene in a trial to clarify confusing testimony and facilitate the orderly and expeditious progress of the trial, the court may not take on 'the function or appearance of an advocate' " (People v Zamorano, 301 AD2d 544, 546 [2003], quoting People v Arnold, 98 NY2d 63, 67 [2002]; see People v Chatman, 14 AD3d 620, 620 [2005]). "In last analysis, [the trial judge] should be guided by the principle that his [or her] function is to protect the record, not to make it" (People v Yut Wai Tom, 53 NY2d at 58; see People v Chatman, 14 AD3d at 620). "[T]he line is crossed when the judge takes on either the function or appearance of an advocate at trial" (People v Arnold, 98 NY2d at 67; see People v Yut Wai Tom, 53 NY2d at 58). Indeed, "even proper questions from trial judges present significant risks of prejudicial unfairness, particularly when the trial judge 'indulge[s] in an extended questioning' of witnesses" (People v Retamozzo, 25 AD3d 73, 87 [2005], quoting People v Yut Wai Tom, 53 NY2d at 58).

The case comes about from an incident at a banquet hall during a private party. A security guard claims she recovered a gun from the defendant as he entered the banquet hall. After recovering the gun, "The female security guard testified that at around this same time, a scuffle occurred between several people in front of the club, including a man wearing a white shirt, and someone cried out, "gun." The female security guard testified that she then called the 911 emergency number and reported a man with a white shirt waving a gun. She testified, however, that she had never seen the man in the white shirt with a gun. She did not inform the 911 operator about her recovery of the gun from the defendant inside the banquet hall, nor did she describe the defendant to the 911 operator."

The case is reversed because the Defendant's right to a fair trial was tainted by the questions from the Court. In so reversing, the Second Department (New York Appellate Court) exercises its interest of justice jurisdiction. This is important to note because, in certain circumstances, an objection must be preserved - here it was not. Yes, the defense counsel did not object to the judge's questioning of "step-by-step details regarding the female security guard's recovery of the gun from the defendant," or the "manager's observation of the defendant's gun and the 911 call made by the female security guard" and did not object to the "extensive[] question[ing of] a defense witness as to his observation of events on the night in question [or] whether [the defendant] had made false statements to the police and before the grand jury in connection with a prior robbery conviction." Sometimes it is strategic not to object when your adversary is questioning a witness but certainly it becomes a bit more complicated when the person asking the questions is the judge!

Aside from the Paul Newman objection/preservation in the Verdict, who was quoted with saying "Frank Galvin: Your honor, with all due respect: if you're going to try my case for me, I wish you wouldn't lose it," the Second Department finds this questioning so prejudicial as to require a new trial.

The case is People v. Davis, 2017 NY Slip Op 01381 [147 AD3d 1077] (2d Dep't. February 22, 2017). Should you need the services of a Criminal Defense Attorney or an Appellate Attorney, call the Law Offices of Cory H. Morris (631-450-2515 | 954-998-2918).

Featured Posts
Recent Posts
Search By Tags
No tags yet.
Follow Us
  • Facebook Basic Square
  • Twitter Basic Square
  • Google+ Basic Square


  • Instagram Social Icon
  • Facebook Social Icon
  • Google+ Black Square
  • Twitter Clean
  • LinkedIn Basic Black

Attorney Advertising. This website is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.


This web site is designed to provide general information only and to help in the choice of appropriate legal counsel. The information contained herein should not be construed as legal advice. Legal jurisdictions differ on major and minor aspects of the law and each legal situation is unique; requiring that all legal situations be addressed with qualified legal counsel. Statutes and case law frequently change; the accuracy of this information can only be represented as of the date of publication.


Prior results do not guarantee a similar outcome. Submitting or receiving information web does not create an siteattorney client relationship. No attorney clientthis relationship will exist unless you meet with one of our attorneys and sign a retainer agreement. Please do not submit any information that is case specific, personal or confidential. 

RSS Feed
  • LinkedIn App Icon
  • Blogger App Icon
  • Wix Twitter page
  • RSS Social Icon