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

The PEOPLE, etc., Respondent, v. Carlos PRADO, Appellant.

Decided: November 17, 2003

ANITA R. FLORIO, J.P., SONDRA MILLER, LEO F. McGINITY, ROBERT W. SCHMIDT and THOMAS A. ADAMS, JJ. Lynn W.L. Fahey, New York, NY, for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Diane R. Eisner of counsel), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (D'Emic, J.), rendered May 31, 2001, convicting him of course of sexual conduct against a child in the first degree and endangering the welfare of a child, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

 The defendant failed to preserve for appellate review his challenge to the sufficiency of the evidence adduced by the prosecution corroborating his confessions as required by CPL 60.50 (see CPL 470.05[2];  People v. Santos, 86 N.Y.2d 869, 870-871, 635 N.Y.S.2d 168, 658 N.E.2d 1041;  People v. Mosca, 294 A.D.2d 938, 741 N.Y.S.2d 780).   In any event, there was sufficient independent evidence to establish the defendant's commission of the crimes of which he was convicted (see People v. Chico, 90 N.Y.2d 585, 588-589, 665 N.Y.S.2d 5, 687 N.E.2d 1288).   Independent evidence established that at the times of the sexual assaults, the defendant was the sole adult present at the crime scenes while the victim's mother attended Parent-Teacher Association meetings (see People v. Lipsky, 57 N.Y.2d 560, 457 N.Y.S.2d 451, 443 N.E.2d 925).   Furthermore, the victim's mother testified regarding her daughter's timely outcry (see People v. Anthony D., 259 A.D.2d 1011, 689 N.Y.S.2d 897;  People v. Bott, 234 A.D.2d 625, 626, 651 N.Y.S.2d 207).

 Contrary to the opinion of our dissenting colleagues, we are not persuaded that the defendant was deprived of his right to a fair trial.   The defendant contends, and the dissent agrees, that the trial court exhibited bias against him, apparently as a result of its awareness of the evidence of the defendant's confessions elicited during the course of the pretrial Huntley hearing (see People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179).   The defendant suggests that the trial court thus improperly aided the prosecution in eliciting prejudicial testimony from the young complainant.   Initially, the defendant failed to raise any specific, relevant objections to the trial court's alleged bias or its alleged excessive involvement in the examination of the complainant.   Thus, these claims are unpreserved for appellate review (see CPL 470.05[2];  People v. Smalls, 293 A.D.2d 500, 739 N.Y.S.2d 630;  People v. Mujtaba, 251 A.D.2d 515, 673 N.Y.S.2d 598;  People v. Gonzalez, 246 A.D.2d 667, 666 N.Y.S.2d 950;  People v. Whitehead, 155 A.D.2d 567, 547 N.Y.S.2d 421).   Moreover, as acknowledged by the dissent, the mere fact that a judge presides over a pretrial Huntley hearing (see People v. Huntley, supra ), does not disqualify that judge from presiding over the nonjury trial that follows, as a judge is presumed to be impartial (see People v. Moreno, 70 N.Y.2d 403, 406, 521 N.Y.S.2d 663, 516 N.E.2d 200).   It is undisputed that the defendant consented to the course of the proceedings.

 In any event, the trial court did not usurp the prosecutor's function.   A trial judge is not an “automaton” (People v. Yut Wai Tom, 53 N.Y.2d 44, 56, 439 N.Y.S.2d 896, 422 N.E.2d 556).   A trial judge possesses the discretion to become involved in witness examination to the extent necessary to clarify issues and proof, and to ensure the orderly and expeditious progress of the trial (see People v. Fauntleroy, 258 A.D.2d 664, 665, 683 N.Y.S.2d 916;  People v. White, 210 A.D.2d 446, 620 N.Y.S.2d 436;  People v. Lee, 175 A.D.2d 141, 573 N.Y.S.2d 884).   In this case, at the time of the trial the complaining witness was 11 years of age and she was understandably reticent in providing the traumatic details of her repeated sexual abuse at the hands of the defendant.   While the trial court may have engaged in greater reassuring and cajoling conduct than would have been permissible with a typical adult witness, the level of the trial court's involvement was fully warranted under the circumstances.   Moreover, in light of the defendant's detailed, emotional, apologetic, and clearly credible oral, written, and videotaped confessions, there is simply no basis for the dissent's conclusion that judicial bias deprived the defendant of a fair trial.

The defendant's remaining contentions are without merit.

The defendant stands convicted, after a nonjury trial, of having engaged in, inter alia, sexual conduct with his then eight-year-old stepdaughter.   The defendant contends that he was deprived of a fair trial because the trial judge, who presided over the pretrial Huntley hearing (see People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179), exhibited bias against him.   I agree.

The defendant was charged with engaging in inappropriate behavior, commencing in 1997, with his then eight-year-old stepdaughter.   In September 2000, the complainant told her mother that the defendant sexually assaulted her.

Insofar as relevant, the defendant signed two written confessions and confessed again in a detailed videotaped statement, indicating that he committed a variety of sexual acts with his stepdaughter.   A pretrial Huntley hearing was conducted, at the conclusion of which, the hearing court denied suppression of the two written confessions and the tape-recorded confession.   The hearing court stated:

“Now let me ask just a couple of questions.   The defendant has admitted his actions in this case.   I don't think there is no [sic] doubt about that, this is no secret, and the maximum penalty if he was convicted of the top count, which I am not saying he is going to be, but he faces 25 years in prison.

“Has there been any offer from the People?   Will there be any offer from the People?   Is there any movement for plea negotiations because what I would like to do is keep this case and try it.   I would like to try it tomorrow, but once a jury comes in this room there will be no discussions about plea and I want to be fair to Mr. Prado.   You just saw [a defendant in an unrelated case] who was in here.   I said the same thing to him.   There was a plea offer.   He rejected the plea offer.   There was a trial, it went to verdict and the resulting sentence.

 *   *   *   *   *   *

“Let me preface this by saying that obviously if [the defendant] was innocent, had no involvement in this, then it wouldn't be just for him to plead guilty but let's face it it's no secret here.   We all watched the videotape.   I don't see that happening.”

The matter proceeded to a bench trial.

At the trial, the complainant expressed reluctance in testifying against the defendant.   Indeed, the complainant stated that the defendant did not touch her.   The complainant also denied telling the truth to the detective investigating the matter when she told him that the defendant touched her.

Subsequently, the trial judge, in an apparent effort to obtain corroborative evidence, stated to the prosecutor:

“THE COURT:  Ms. Cohen, before we call Detective Sweeney what I would like to do, if you wish, is to recall the complaining witness because she has effectively contradicted apparently her grand jury testimony and under Criminal Procedure Law 60.35 I believe that entitles you to confront her with her grand jury testimony and I just want to under Section Three since her testimony on direct examination clearly tended to disprove your position at this trial I think you can indeed impeach her with the grand jury testimony in such a way that reveals its contents.”

The prosecutor then sought to impeach the complainant's testimony through the use of her grand jury testimony.

Certainly, there is no prohibition against a judge presiding over a Huntley hearing as well as the trial itself (see People v. Moreno, 70 N.Y.2d 403, 406, 521 N.Y.S.2d 663, 516 N.E.2d 200;  People v. Brown, 24 N.Y.2d 168, 172-173, 299 N.Y.S.2d 190, 247 N.E.2d 153).   While the trial judge has a vital role in clarifying confusing testimony and ensuring an orderly trial (see People v. Yut Wai Tom, 53 N.Y.2d 44, 57, 439 N.Y.S.2d 896, 422 N.E.2d 556), here, the trial judge exceeded the court's function.   This is not a case of the trial court simply reassuring the young complaining witness.   The record demonstrates that the trial judge had made up his mind as to the defendant's guilt prior to the nonjury trial.   Upon being surprised by the complainant's trial testimony which did not incriminate the defendant, the trial judge took on the role of the prosecutor.   The trial judge counseled the prosecutor to recall the complainant in order to confront her with her contradictory grand jury testimony which the trial judge fully credited (cf.  CPL 60.35[3] ).   This conduct constituted inappropriate intervention, thereby depriving the defendant of his right to a fair trial, notwithstanding his prior confessions.

S. MILLER, SCHMIDT and ADAMS, JJ., concur.

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