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New York on Tuesday officially joined the federal courts and 40 states that allow judges to call witnesses under some circumstances, but the New York Court of Appeals stressed that those instances should be rare and that jurists must exercise painstaking care to avoid assuming an advocacy role. The court said for the first time in People v. Andre Arnold that the same rules and restrictions that would apply when a judge questions a witness called by counsel are applicable “in those unusual circumstances” where a court calls its own witness. And as if to underscore how fine that line is, the court went on to reverse a conviction where in a bench trial Manhattan Supreme Court Justice Nicholas Figueroa called a witness that the prosecution had failed to produce. Doing so, the court said, “deprived the defendant of the ability to request that the trier of fact draw a negative inference from the People’s failure” to bring a particular officer to the stand. In another criminal matter Tuesday, the court re-examined the circumstances under which a defendant is entitled to a jury charge on extreme emotional disturbance. In People v. Ramon Roche, the court reminded that a defendant seeking to establish the affirmative defense must satisfy both a subjective element, that his conduct was influenced by an extreme emotional disturbance, and an objective element, that there is a reasonable explanation for the emotional disturbance. Arnold stems from a drug and weapon possession conviction. In May 1998, narcotics officers aided by the Emergency Services Unit (ESU) raided an apartment on East 132nd St. in Harlem. Andre Arnold, who was arrested, opted for a bench trial before Justice Figueroa, claiming he had been framed. After the defense rested, Figueroa called an ESU sergeant and questioned him about procedures. The officer did not specifically recall the Arnold arrest, but testified generally about ESU policies on frisking or searching suspects. Figueroa found Arnold guilty of fourth-degree criminal possession of a controlled substance and third-degree criminal possession of a weapon. Arnold was sentenced to a 4-to-8-year prison term and the conviction was upheld by the Appellate Division, 1st Department. On appeal, Camilla B. Taylor of the Legal Aid Society argued that Figueroa “abandoned his role as a neutral arbiter and thereby deprived appellant of his due process right to a fair trial and an impartial fact-finder.” Manhattan Assistant District Attorney Madeleine Guilmain maintained that a judge has the discretion to call witnesses “for the purpose of clarifying the testimony and to further develop the facts of the case.” The unanimous Court of Appeals said through Judge Carmen Beauchamp Ciparick that Taylor and Guilmain are both right, to an extent. JUDGE’S ROLE Ciparick said the traditionally separate and well-defined roles of the decision-maker and advocate have evolved, and “as a practical matter, trial courts sometimes must take a more active role in the presentation of evidence in order to clarify a confusing issue or to avoid misleading the trier of fact.” She said the trial judge’s discretion in these matters is wide, but restrained by the premise that “it is the function of the judge to protect the record at trial, not to make it.” The court said that a judge may call its own witnesses, even over the objections of a party, but when a court “feels compelled to do so, it should explain why, and invite comment from the parties. In that way, the court can consider what it aims to gain against any claims of possible prejudice.” In the Arnold matter, Justice Figueroa offered no explanation for his decision to call the ESU officer, and “simply called the witness after both sides had rested and had consciously and deliberately chosen not to call him,” the court said. It said the mistake undermined the defense case and created a “significant probability that the verdict would have been affected had the error not occurred.” Arnold was paroled last month. Tuesday, the day the court reversed Arnold’s conviction, was his 42nd birthday. SECOND REVERSAL The 1st Department was also reversed in the Roche matter. Roche was charged with the vicious stabbing death of his common-law wife, Lillian Rivera, on Dec. 27, 1991. After his first trial, Roche was convicted and sentenced to a 25-year-to-life term for second-degree murder. The 1st Department reversed and ordered a retrial, where Roche was convicted anew of intentional murder and sentenced to a term of 25 years to life. Last year, the 1st Department reversed the conviction again on the grounds that the trial judge erred in refusing to allow the jury to consider a manslaughter charge-down if it concluded that Roche’s conduct resulted from an extreme emotional disturbance. The Court of Appeals reinstated the conviction. Judge Victoria A. Graffeo, writing for the unanimous court, said Roche failed to establish either the objective or subjective elements necessary for the requested charge-down. Graffeo said there is no evidence in the record that Roche actually suffered from a mental infirmity at the time of the crime. The court also categorically rejected the argument of Eunice C. Lee of the Office of the Appellate Defender in Manhattan that the brutal nature of the crime — the victim was stabbed 23 times and the defendant initially claimed the wounds were self-inflicted — suggests a mental infirmity. “While proof concerning the nature of the wounds defendant inflicted is relevant, we have never held that a jury may infer the presence of an extreme emotional disturbance based solely on proof that the crime was especially violent or brutal,” Graffeo wrote. “The approach defendant suggests would subvert the purpose of the affirmative defense by automatically providing the benefit of a manslaughter charge-down to every defendant who commits a particularly brutal or violent homicide — a result the Legislature certainly did not intend.” Manhattan Assistant District Attorney Sheryl Feldman argued for the prosecution. Sanctuary for Families’ Center for Battered Women’s Legal Services appeared as amicus curiae.

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