People v. Smith , 44 A.D.2d 789 ( 1974 )

Judgment, Supreme Court, Bronx County, rendered October 4, 1972, convicting the defendant, after a jury verdict, of possession of a weapon as a felony and sentencing him to a maximum of seven years in prison, unanimously reversed on the law and in the interests of justice and a new trial directed before a different Judge. The defendant was indicted on two drug counts, in addition to the gun charge. The jury returned a verdict of not guilty on the narcotics counts. In our opinion, defendant was deprived of a fair and impartial trial by the trial court. In his opening remarks to the jury, defense counsel indicated that the defense position was that the contraband had been taken from the bar of the bar and grill where the arrest occurred, and “planted” on the defendant. While some comment on this by the court may have been warranted, unfortunately the Trial Justice repeatedly adverted to this position in derogatory fashion, and the trial was reduced to a contest between defense counsel and the court on this point, to the prejudice of the defendant. Under the circumstances, a new trial is warranted, and it is prefferable that it take place before a different Judge. (People v. Ohanian, 245 N. Y. 227; People v. Sostre, 37 A D 2d 574; United States v. Nazzaro, 472 P. 2d 302; cf. People v. Mendes, 3 N Y 2d 120.) We have examined appellant’s other points and find no error. Concur — Nunez, J. P., Kupferman, Steuer, Capozzoli and Lane, JJ.