52 A.D.2d 540 | N.Y. App. Div. | 1976
Judgment, Supreme Court, New York County, rendered on September 20, 1973, convicting defendant, after trial before Burton B. Roberts, J., and a jury, of five counts of bribe receiving and four counts of receiving unlawful gratuities, unanimously modified, on the law, to the extent of reversing the convictions for receiving unlawful gratuities and dismissing those counts of the indictment, and, as so modified, the judgment is affirmed. The People agree that under the facts of this case, receiving unlawful gratuities constituted inclusory concurrent counts of bribe receiving. We agree with the appellant that the trial court unnecessarily and unduly interjected itself into the trial by frequent participation in the questioning of witnesses. But it appears that he questioned both the People’s witnesses and defendant’s witnesses. While we do not approve of the trial court’s interference to the extent that it did, we do not find that any prejudice resulted to the defendant; nor did it deprive him of a fair trial. We realize that this was not a model trial, but the proof of the defendant’s guilt is clear and convincing and no legal reason is demonstrated which would justify an interference with the jury’s verdict by this court. Concur—Stevens, P. J., Murphy, Silverman, Capozzoli and Nunez, JJ.