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The “gratuitous nature” of a Manhattan judge’s “repeated interventions” in favor of the prosecution has resulted in the reversal of a drug possession conviction by New York’s Appellate Division, 1st Department. In a 28-page decision, the appellate panel enumerated 16 instances in which Supreme Court Justice Edwin Torres interrupted questioning in a manner that prejudiced the defense’s case. Justice James M. McGuire, who wrote the panel’s unanimous opinion, noted that there were many more. “Although [the] instances of judicial intervention during the People’s direct case were improper, the trial judge’s interventions during the presentation of the defense case were perhaps more egregious,” he wrote in People v. Retamozzo, 6639. “Of the 147 some questions posed to defendant on direct examination, the trial judge asked nearly 15 percent.” The defendant, Armand Retamozzo, was convicted after a jury trial before Torres on two counts of criminal possession of a controlled substance and sentenced to concurrent terms of 1 to 3 years and 3 years to life. Torres is also the author of several novels, including “Carlito’s Way,” which was made into a movie in 1993 starring Al Pacino. Retamozzo appealed, contending that the trial court deprived him of his constitutional right to a fair trial by excessive interfering in the examination of witnesses. Over the course of an often-excoriating opinion, McGuire concurred. He was joined by Justices Angela M. Mazzarelli, Richard T. Andrias, Betty Weinberg Ellerin and Luis A. Gonzalez. Retamozzo and a fellow Nassau Community College student were arrested at Washington Square, where police confiscated 1,000 Ecstasy pills in and near Retamozzo’s car. McGuire detailed the numerous times during trial that Torres improperly intervened on the prosecution’s behalf. The first interruption cited in the decision came during the cross-examination of an undercover police officer referred to as “Detective Vargas,” the prosecution’s “most important witness.” Retamozzo’s attorney, Brett I. Wolfe, attempted to question Vargas as to whether the “Kel” listening device he had worn recorded any portion of his encounter with the defendant. “Not to my knowledge,” the detective answered. “This legitimate line of questioning,” McGuire wrote, “was obviously designed to ground an argument on summation that a lack of evidence was a key issue.” However, immediately after the officer answered, Torres interrupted. “Beside[s], the Kels never work, right?” the judge asked. “That’s true, too,” Vargas replied. The appellate decision listed four reasons that the intervention was improper: It was a declaration of an ostensible fact; it came from “not only an authoritative figure, but from someone who had neither been qualified as an expert to give an opinion on this supposed state of affairs relating to the Police Department’s telecommunications equipment nor been sworn to tell the truth;” it was phrased in a manner in which “the witness could dispute its accuracy only at the price of contradicting the judge;” and there was no need for the judge to intervene in the first place. The decision cited 15 other instances in which Torres “effectively testified in a manner favorable to the People’s case,” and noted that there were many others. When Wolfe cross-examined a second undercover officer, for example, he tried to establish that on the evening of the arrest, Jan. 8, 2003, the sun set early. “[T]he shortest day of the year is Dec. 21st, right?” he asked. “That is a trick question,” Torres interrupted. McGuire took issue with Torres’ characterization. “Counsel’s relevant question on a matter of common knowledge was hardly a ‘trick question’ and did not merit any reproach from the trial judge, let alone one that tended to portray counsel as tricky if not devious,” he wrote. Torres’ comment to defense counsel, “Save that for summation, this fooling,” elicited a similar response. “Counsel’s question was a proper subject for cross-examination and did not warrant any judicial intervention, let alone intervention unprompted by an objection,” McGuire wrote. “Nor was there any basis for a comment that reasonably could have been interpreted by the jury as reflecting the judge’s view that counsel was ‘fooling’ around.” Although the defense failed to preserve the issue at trial, the panel agreed nonetheless to review the case. “Given the magnitude of the deprivation of defendant’s right to a fair trial … we review defendant’s claim in an exercise of our interest of justice jurisdiction,” McGuire wrote. RISK OF UNFAIRNESS The governing law, according to the decision, comes from People v. Yut Wai Tom, 53 NY2d 44, a New York Court of Appeals decision that held in part, “A Trial Judge’s examination of witnesses carries with it so many risks of unfairness that it should be a rare instance when the court rather than counsel examines a witness.” In the present cases, interruptions were far more than “rare,” the panel held. As “the ‘credibility of [the] defendant was a key issue,’ and the trial judge’s conduct deprived defendant of the right to have the jury resolve that issue in a fair trial presided over by a fair and impartial judge,” the panel reversed the conviction and remanded the matter for a new trial, before a different judge. Retamozzo has served approximately 1-1/2 years of his sentence at the Mid-State Correctional Facility. Edward M. Kratt, who along with John R. Lewis represented Retamozzo on appeal, said that his client might not agree to a plea agreement based on time served. “This kid’s indicated to me that if this case is reversed he wants to go to trial again,” said Kratt, of the Law Office of Edward M. Kratt. “He’s a pretty smart kid. He has a military background and he’s really desirous of clearing his record.” The Manhattan district attorney’s office declined to comment.

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