PEOPLE v. MARTINEZ (2021)

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Ronald Hollie, J.), rendered July 7, 2016, convicting him of attempted assault in the first degree, assault in the second degree, criminal possession of a weapon in the fourth degree, and harassment in the second degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, as a matter of discretion in the interest of justice, and the matter is remitted to the Supreme Court, Queens County, for a new trial before a different Justice.

Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt of attempted assault in the first degree beyond a reasonable doubt.  Contrary to the defendant's contention, the evidence was legally sufficient to establish that the defendant intended to inflict a serious physical injury (see Penal Law §§ 10.00[10];  110.00, 120.10[1];  People v. Mosquera, 181 A.D.3d 723, 724, 117 N.Y.S.3d 598;  People v. Dawson, 178 A.D.3d 719, 720, 115 N.Y.S.3d 360).  Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5];  People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 779 N.Y.S.2d 399, 811 N.E.2d 1053;  People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).  Upon reviewing the record here, we are satisfied that the verdict of guilt on the count of attempted assault in the first degree was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902).

However, there must be a new trial, before a different Justice.  At trial, the Supreme Court engaged in extensive questioning of witnesses, usurped the roles of the attorneys, and generally created the impression that it was an advocate for the People (see People v. Yut Wai Tom, 53 N.Y.2d 44, 439 N.Y.S.2d 896, 422 N.E.2d 556;  People v. Savillo, 185 A.D.3d 840, 125 N.Y.S.3d 287;  People v. Ramsey, 174 A.D.3d 651, 101 N.Y.S.3d 907;  People v. Sookdeo, 164 A.D.3d 1268, 82 N.Y.S.3d 114;  People v. Robinson, 151 A.D.3d 758, 56 N.Y.S.3d 248).  Although defense counsel did not object to the court's conduct, based on the circumstances of this case, we reach this contention in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a];  People v. Mitchell, 184 A.D.3d 875,875–876, 126 N.Y.S.3d 159;  People v. Ramsey, 174 A.D.3d at 652, 101 N.Y.S.3d 907).

In light of our determination, we need not address the defendant's remaining contention.

CHAMBERS, J.P., MILLER, GENOVESI and DOWLING, JJ., concur.