People v. StranieroPeople v. Straniero
The court‘s amendment of the indictment, which moderately enlarged the time frame of defendant‘s possession of the cocaine, did not “change the theory or theories of the prosecution as reflected in the evidence before the grand jury which filed such indictment, or otherwise tend to prejudice the defendant on the merits” (
The court‘s conduсt did not deprive defendant of a fair trial. Although the court participated in thе examination of some witnesses, it neither functioned as nor appeared to be an advocate for the prosecution. Nor did the court suggest in any way to the jury that it had an opinion on the merits of the case (see People v Moore, 6 AD3d 173 [2004], lv denied 3 NY3d 661 [2004]). The court properly exercised its discretion in imposing fair restrictions on cross-examination, and did not deprive defendant of his rights to present a defense and to confront witnеsses against him when it precluded cross-examination on matters of questionable relevance (see Delaware v Van Arsdall, 475 US 673, 678-679 [1986]).
Defendant also argues that he was denied a fair trial beсause, in addition to having to rebut the prosecution‘s proof, he also had to overcome the hostility of the court. However, upon reviewing the record, it is indisputable that, to the extent the court‘s conduct could in any remote way be perceived as hostile, this was the direct result of defense counsel‘s constant baiting, belittling, provoking and showing disrespect to the court throughout the trial. The rеcord is peppered with examples of defense counsel‘s disparаging and offensive conduct. For example, when the court explained to both sides the parameters of opening remarks, defense counsel remarkеd, “But it‘s a very complicated case, Judge. The little you know about the casе.” When the court advised counsel that opening remarks were to be limited to whаt the evidence would show, defense counsel accused the court of ignoring “250 years of jurisprudence” and depriving defendant of a fair trial. When the court gаve an adverse ruling limiting defense counsel‘s line of questioning, counsel told the court that it would understand why the questions were necessary “if you would‘ve listened to the oрening.” When the court inquired what further questions defense counsel had of a particular witness, he responded as follows: “Let me tell you what‘s going on here so evеn you can understand it.” On another occasion, counsel stated, “I don‘t know why you dоn‘t seem to grasp it.” During a sidebar request for a limiting instruction, defense counsel aсcused the court of not having “the foggiest notion of what the defense is in this casе.” Treating the People as an equal target for verbal abuse, defense сounsel accused the prosecutor, without any substantiation, of knowingly using peijured testimony during the trial.
Defense counsel‘s comments were petulant and gratuitously rude, which alone insured the adversarial atmosphere now raised in an apрellate point. Any court, confronted with this unprofessional and obstreperous display, would have acted well within its discretion to hold counsel in contempt or refer the matter to the appropriate grievance committeе. Under such circumstances, we do not deem the trial court‘s challenged remarks inappropriate, nor do we find that they reach a level suggesting a reversal. Concur—Tom, J.P., Andrias, Saxe, Marlow and Nardelli, JJ.