In a strongly worded 21-page decision, an Appellate Division, 1st Department, panel rebuked a Manhattan judge Thursday for establishing a pattern over the last few years of consistently and improperly intervening in the questioning of witnesses.
In its unsigned opinion People v. Melendez, 8200, the panel upheld a jury's conviction of a Manhattan man on felony drug charges, but criticized acting Supreme Court Justice Arlene R. Silverman's interference during the prosecution's direct examination of witnesses.
"We have had occasion to observe in [five] other cases involving the same Justice ... her extensive examination of witnesses, which seemingly stems from an inability to accept the possibility that there is more than one way, her way, to examine a witness," the panel stated.
"The key to any direct examination is to have the jury focus its attention exclusively on the witness, not the examiner. That goal is completely frustrated by the overly intrusive questioning of a witness by a trial judge ... . While reversal is not, in the absence of prejudice to a defendant, the remedy, such injudicious conduct should not go unaddressed."
The panel concluded, "The trial judge would do well to heed our criticism."
Justices David B. Saxe, George D. Marlow, Joseph P. Sullivan, Luis A. Gonzalez and James M. Catterson sat on the unanimous panel.
The defendant Felix Melendez, was arrested on Feb. 6, 2003, and charged with possession and sale of a controlled substance. He was convicted by a jury before Silverman.
Melendez appealed, arguing among other things that Silverman's improper intervention and extensive questioning deprived him of a fair trial.
The appellate panel agreed that the court's interference had been "pervasive," citing as an example an exchange between Silverman and a witness in which the judge asked approximately 50 questions, repeatedly cutting off the prosecutor to continue her own line of questioning.
While Silverman's questioning "fleshed out details of each subject introduced by the prosecutor," it also at one point laid the foundation for the admission into evidence of 10 glassine envelopes of heroin and a bag of cocaine.
'UNDUE INTERFERENCE'
However, the panel ruled, Silverman "did not become an advocate for the People or usurp the role of the prosecutor or defense counsel." The 1st Department therefore affirmed the conviction.
"This is not to say, however, that we should turn a blind eye to the trial judge's overly intrusive involvement in the questioning of witnesses and undue interference in the orderly presentation of proof in the trial of a criminal case," the panel stated.
Silverman, a 1967 graduate of Harvard Law School and former assistant state attorney general, has served as a Criminal Court judge since 1984 and as an acting Supreme Court justice since 1999. She did not return a phone call seeking comment.
Barbara Zolot and Lisa Joy Robertson of the Center for Appellate Litigation represented Melendez.
Assistant District Attorney Susan Axelrod represented the prosecution.
The five previous decisions in which the First Department noted Silverman's "extensive examination of witnesses" are People v. Robles, 26 AD3d 177, People v. Straniero, 17 AD3d 161, People v. Thompson, 8 AD3d 213, People v. Moore, 6 AD3d 173, and People v. Robinson, 3 AD3d 404.