Wayne County Attorney, Petitioner-Respondent. v. <<

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of YADIEL ROQUE C., Respondent-Appellant. Wayne County Attorney, Petitioner-Respondent.

Decided: April 29, 2005

PRESENT:  GORSKI, J.P., SMITH, PINE, AND HAYES, JJ. Robert A. DiNieri, Law Guardian, Clyde, for Respondent-Appellant. Daniel A. Wyner, County Attorney, Lyons (John W. Gibbon, II, of Counsel), for Petitioner-Respondent.

 Respondent appeals from an order adjudicating him to be a juvenile delinquent based on the finding that he committed an act that, if committed by an adult, would constitute the crime of unauthorized use of a vehicle in the third degree (Penal Law § 165.05[1] ) and placing him in the custody of the New York State Office of Children and Family Services for a period of 12 months.   Respondent contends that Family Court erred in denying his motion to dismiss at the close of the presentment agency's case inasmuch as there is insufficient proof that respondent knew that he did not have the consent of the owner when he was operating the motor vehicle.   By failing to raise that contention in his motion to dismiss at the close of the presentment agency's case, respondent has failed to preserve that contention for our review (see generally People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919).   In any event, the proof is legally sufficient inasmuch as the court, as the trier of fact, was entitled to presume that respondent knew that he lacked consent to operate the motor vehicle based on the evidence that he was found operating the vehicle and did not have the consent of the owner to do so (see § 165.05[1] ).

 Respondent also contends that he was denied a fair trial by the court's intrusive conduct during the fact-finding hearing.   Although respondent's contention is not preserved for our review (see People v. Charleston, 56 N.Y.2d 886, 887, 453 N.Y.S.2d 399, 438 N.E.2d 1114;  People v. Maddox, 236 A.D.2d 832, 833, 653 N.Y.S.2d 884, lv. denied 89 N.Y.2d 1037, 659 N.Y.S.2d 868, 681 N.E.2d 1315), we nevertheless review that contention in the interest of justice (see Matter of Nicholas M., 11 A.D.3d 545, 546, 783 N.Y.S.2d 624).

 Although “a trial judge may intervene in a trial to clarify confusing testimony and facilitate the orderly and expeditious progress of the trial, the court may not take on ‘the function or appearance of an advocate’ ” (People v. Zamorano, 301 A.D.2d 544, 546, 754 N.Y.S.2d 645, quoting People v. Arnold, 98 N.Y.2d 63, 67, 745 N.Y.S.2d 782, 772 N.E.2d 1140;  see People v. Chatman, 14 A.D.3d 620, 789 N.Y.S.2d 208;  cf. People v. Jamison, 47 N.Y.2d 882, 883, 419 N.Y.S.2d 472, 393 N.E.2d 467).  “In last analysis, ․ [the trial judge] should be guided by the principle that his [or her] function is to protect the record, not to make it” (People v. Yut Wai Tom, 53 N.Y.2d 44, 58, 439 N.Y.S.2d 896, 422 N.E.2d 556;  see Chatman, 14 A.D.3d at 620, 789 N.Y.S.2d 208;  People v. Mendez, 225 A.D.2d 1051, 639 N.Y.S.2d 219).   That principle applies in bench trials (see Arnold, 98 N.Y.2d at 67-68, 745 N.Y.S.2d 782, 772 N.E.2d 1140), including juvenile delinquency proceedings (see Matter of Carlos S., 5 A.D.3d 1051, 773 N.Y.S.2d 653, lv. denied 2 N.Y.3d 707, 781 N.Y.S.2d 288, 814 N.E.2d 460).   Here, “[t]he course of conduct of the trial judge was such that he assumed the appearance of an advocate at the trial by his extensive examination of certain witnesses” (Chatman, 14 A.D.3d at 620, 789 N.Y.S.2d 208;  see Arnold, 98 N.Y.2d at 67-68, 745 N.Y.S.2d 782, 772 N.E.2d 1140;  cf. People v. Robinson, 3 A.D.3d 404, 770 N.Y.S.2d 618, lv. denied 2 N.Y.3d 765, 778 N.Y.S.2d 783, 811 N.E.2d 45).   We therefore reverse the order and remit the matter to Family Court for a new fact-finding hearing.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed in the interest of justice without costs and the matter is remitted to Family Court, Wayne County, for a new fact-finding hearing.

MEMORANDUM: