Judge's ridicule of attorney prompts panel to order new trial

A Bronx, N.Y., judge ridiculed a defense attorney and criticized his arguments in front of a jury by using loaded words such as "clown," "silly," "outrageous" and "comedy," prompting a unanimous appeals panel Tuesday to overturn a robbery conviction and to direct that on remand the case be tried before a different judge.

A unanimous panel of the Appellate Division, 1st Department, found that the "trial court's pervasive denigration of defendant's counsel, in front of the jury, deprived the defendant of a fair trial."

The comments by Acting Supreme Court Justice Robert A. Neary mandated reversal, according to the unsigned opinion by the panel that included Justices Richard T. Andrias, David B. Saxe, James M. McGuire, Karla Moskowitz and Helen E. Freedman.

The ruling in People v. Leggett, 3401/07, grants a new trial for David Leggett, who was convicted last year of attempted carjacking and sentenced to 5 1/2 years in prison. He was also charged with possession of stolen property.

Leggett was represented by David N. Levine, who spent five years in the Bronx district attorney's office and in the 20 years since has had a criminal defense practice, mainly in the Bronx. Levine declined to comment.

Neary had made several "unfortunate comments," the panel said. For example, during Levine's cross-examination of the alleged victim of the attempted carjacking, Neary made and sustained his own objection saying that the line of questioning had been irrelevant the first time it had been raised and "to repeat it a second time is silly."

At one point, when Levine sought to argue after the prosecutor had raised an objection, Neary told Levine, "You're turning this into a comedy and it's not."

"More egregiously," the panel wrote, Neary, in denying one of Levine's objections to the prosecutor's summation, said, "Would you behave like a professional, please and not a clown."

The panel said that even assuming that defense counsel may at times have overstepped the bounds of zealous advocacy, "the court's injudicious remarks, in the presence of the jury, were unjustified."

Should an attorney's conduct warrant admonishment, the panel noted, the proper course is to take up the matter with the lawyer outside the presence of the jury. Also, once an injudicious remark has been made, a trial judge "should issue curative instructions."

Neary had been a prosecutor in the Westchester district attorney's office for 28 years before joining the bench as a Westchester County Court judge in 2003. Three years later New York Gov. George E. Pataki appointed him to the Court of Claims and he was re-appointed to a full 10-year term by Gov. David A. Paterson in 2008.

After hearing criminal cases in Westchester for five years, Neary was transferred in 2008 to the Bronx to help cope with the rising felony backlog under the experimental merged Criminal/Supreme Court.

Neary did not return a call seeking comment. David Bookstaver, a spokesman for the Unified Court System, said, "We do not comment on Appellate Division decisions."

Leggett was accused of trying to hijack a Nissan sport utility vehicle, but the owner managed to retain control of the car and escape in it. Nearby, at approximately the same time, according to the prosecution, a 1996 Acura was stolen.

Four days later, Leggett was arrested as he sat in the stolen Acura. He was not accused of stealing the car but of possessing stolen property.

The jury acquitted him of possession of the stolen Acura but found him guilty of attempted robbery in the second degree with respect to the Nissan SUV.

The appeal was argued on May 4, 2010.

John Vang, a staff lawyer at the Center for Appellate Litigation, represented Leggett on the appeal.

Assistant District Attorney Thomas R. Villecco handled the appeal for the Bronx district attorney.

(Published by New York Law Journal - September 15, 2010)