The People of the State of New York, Respondent, v. Ernest Robinson, Appellant

The People of the State of New York, Respondent, v Ernest Robinson, Appellant. [608 NYS2d 456] [MAJORITY] —Judgment, Supreme Court, New York County (Clifford Scott, J.), rendered January 9, 1991, convicting defendant, after jury trial, of criminal possession of a controlled substance in the third degree, criminal possession of a controlled substance in the fourth degree, and criminally using drug paraphernalia in the second degree, and sentencing him, as a second felony offender, to concurrent terms of from 12Vá to 25 years, IVz to 15 years, and 1 year, respectively, unanimously reversed, on the law, and the matter remanded to Supreme Court for a new trial. When, in his opening statement, defense counsel expressed doubt about the memory of the arresting officer, the court interjected, "Is that what you are going to prove?” Also during his statement, when defense counsel referred to "the facts that will be shown,” the court again interrupted, saying, "No, tell us what you are going to prove.” Later, the court said: "Opening statement is what you are going to prove”. The court later cut short the defense’s opening statement and denied defense counsel’s requests to make a record at the bench. Although the court did tell the jury that a defense counsel may decline to make an opening statement because he was not required to prove or disprove anything and, in its final instructions, said that no defendant is required to prove or disprove anything, the statements by the court during the aborted opening statement could give the jury a message that there were indeed things that the defense had to prove. Suggestions of an opinion by the trial court, however, which " 'might be seized upon by the jury and eventually prove decisive’ ” can be prejudicial and would necessitate a new trial (People v Bell, 38 NY2d 116, 120-121). Moreover, defense counsel here was effectively denied his statutory right to make "an opening address to the jury” (CPL 260.30 [4]). The Court has considered defendant’s other claims of error and finds them without basis. Concur — Carro, J. P., Ellerin, Rubin, Nardelli and Tom, JJ.