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A Manhattan Supreme Court judge’s hostility at trial toward a defense attorney did not rise to the level of meriting a reversal of the defendant’s conviction, an Appellate Division, 1st Department, panel has unanimously held. Attorneys familiar with Patrick Straniero’s criminal possession trial, which resulted in a conviction and a sentence of 15 years to life, said the proceedings quickly descended into contentiousness uncommon even in a New York court. Straniero’s appellate attorney, Richard Mischel, argued that Justice Arlene R. Silverman’s open hostility denied his client’s right to a fair trial. The court exhibited frequent contempt for the trial attorney, Robert Altchiler, as exemplified by Silverman’s asking of more than 550 questions during the course of the relatively short trial, according to Mischel. One example cited in his appellate brief transpired during Altchiler’s opening arguments. “It’s my view, you don’t even have the right to open,” Silverman told Altchiler. “Since you have nothing to prove, you have nothing to open on.” The appellate panel, however, placed the blame squarely on Altchiler, and held that Silverman’s remarks did not merit a reversal of Straniero’s conviction. “[U]pon reviewing the record, it is indisputable that to the extent the court’s conduct could in any remote way be perceived as hostile, this was the direct result of defense counsel’s constant baiting, belittling, provoking and showing disrespect to the court throughout the trial,” the panel ruled in its unsigned opinion, People v. Straniero, 5168. The panel consisted of Justices Peter Tom, Richard T. Andrias, David B. Saxe, George D. Marlow and Eugene L. Nardelli. The decision, which was published Thursday, listed numerous examples of what the panel termed the “defense counsel’s disparaging and offensive conduct.” Altchiler, a Manhattan-based solo practitioner who represented boxer Riddick Bowe against charges of assault and kidnapping, said to Silverman during trial, “Let me tell you what’s going on here so even you can understand it,” and “I don’t know why you don’t seem to grasp it,” for example. When given an adverse ruling limiting his line of questioning, Altchiler responded that the court would have understood the necessity of the disallowed questions “if you would’ve listened to the opening,” according to the appellate decision. Straniero’s appellate attorney, Mischel of Mischel, Neuman & Horn, admitted that his predecessor’s behavior contributed to the courtroom atmosphere. “We conceded in our brief that some of the vituperation engaged in by the court was invited by defense counsel,” he said in an interview. “Nevertheless, the defense has a right to a fair trial, and in many cases the [court's] vituperation was unwarranted.” Experts cautioned that, even when coupled with the censuring of a Brooklyn Criminal Court judge last week for accosting an attorney, Silverman’s “hostility” does not represent a decline in judicial decorum. “I think the judges now are much more aware of a balancing that goes on, and they’re much more sensitive that they have to be fair to both sides, to be moderate,” said Michael Gentile, a former appellate division disciplinary committee chief counsel and now of counsel at Benjamin Brotman and Associates. “These extra efforts to train judges created a sensitivity that didn’t exist 40 or 50 years ago,” he added, referring to the New York State Judicial Institute. In an interview Thursday, Altchiler said, “I respectfully but strongly disagree with the opinion, and I hold [Justice Silverman] in the highest regard.”

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