People v. Little

Titone, J. P., and Bracken, J.,

dissent and vote to reverse the judgment and order a new trial, with the following memorandum: Both this court and the Court of Appeals have made it abundantly clear that when a Trial Judge undertakes to marshal the evidence he or she must do so in a fair and evenhanded manner (People v Williamson, 40 NY2d 1073; People v Budd, 38 NY2d 988; People v Bell, 38 NY2d 116; People v Saunders, 97 AD2d 519; People v Melville, 90 AD2d 488; People v Moran, 84 AD2d 753; People v Brabham, 77 AD2d 626; People v Chambers, 73 AD2d 976; People v Miles, 48 AD2d 706). In our view, the charge in this case violated this precept and was unduly prejudicial to the defendant. More specifically, the court summarized the whole of the People’s case, explaining the elements of the crime, while failing to mention the defendant’s contentions at all, other than by making reference to the fact that by pleading innocent, the defendant put in issue each and every allegation of the indictment. The majority, while agreeing that it would have been “preferable” to have made “some reference” to the “apparent inconsistencies” in the testimony of the prosecution witnesses, nonetheless finds no reversible error. Our colleagues take the position that because the trial was of relatively short duration the deficiencies may be excused. We cannot agree. Irrespective of the length of the trial, a charge which is as unbalanced as the one given here simply “cannot be countenanced” (People v Bell, supra, p 120). “Since the presence of the Judge is likely to be equated with the majesty of ihe law itself * * * ‘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 De Jesus, 42 NY2d 519, 524, quoting from People v Bell, supra, p 120). Defendant clearly suffered prejudice (cf. People v Culhane, 45 NY2d 757, 758, cert den 439 US 1047, where “there was no such inadequacy of explanation or other error of commission or omission”). In addition, it should be noted that the complainant’s testimony concerning the events which occurred at the Phase Three Lounge was not relevant. The admission of that testimony was particularly prejudicial inasmuch as it portrayed defendant as an aggressive man who would resort to the use of a weapon at the slightest provocation (People v Zackowitz, 254 NY 192; People v Gallina, 95 AD2d 336, 343-344; People v Blanchard, 83 AD2d 905, app dsmd 56 NY2d 648; People v Lewis, 52 AD2d 929). Although no objection was made to the admission of that testimony, we may review such errors in the interest of justice (People v Zeldes, 78 AD2d 865). Such review is appropriate here because of the trial court’s failure to give any limiting instruction concerning such testimony (see People v Brown, 78 AD2d 903).