Appellate Division, Second Department courthouse at 45 Monroe Place in Brooklyn, NY. Appellate Division, Second Department courthouse at 45 Monroe Place in Brooklyn, NY.

The New York Supreme Court's Appellate Division, Second Department ruled that a man accused of robbery in Queens should have a new trial before a different judge after his trial judge "improperly assumed the appearance or the function of an advocate," according to a June 24 decision.

When a Queens County prosecutor failed to elicit positive identifications of defendant Brian Mitchell from two witnesses during his 2018 jury trial, Queens County Supreme Court Justice Richard Buchter questioned them himself until they identified Mitchell, the appellate panel wrote.

"Here, the record demonstrates that after the two complainants, in response to questions by the prosecutor, were unable to positively identify the defendant as the perpetrator of the robbery, the Supreme Court improperly assumed the appearance or the function of an advocate by questioning the complainants until it elicited a positive in-court identification of the defendant from each of them. … Under these circumstances, the court's decision to elicit such testimony was an improper exercise of discretion and deprived the defendant of a fair trial," the Second Department panel, which included Justices Betsy Barros, Linda Christopher, Mark Dillon and Hector LaSalle, wrote.

Citing court documents, the Queens Daily Eagle reported that Buchter followed up with one of the witnesses nine times.

The appellate panel ruled that the jury's guilty verdict was not against the weight of the evidence, but they found that the trial judge in the case had gone beyond his permissible capacity to intervene to clarify confusing testimony and facilitate the progress of the trial.

Mitchell's attorney, Denise Fabiano of the Legal Aid Society's Criminal Appeals Bureau, praised the ruling.

"This case involved troubling identification evidence, and the judge's interference prevented the jury from evaluating the grave weaknesses in the prosecution's case," Fabiano said. "When a judge oversteps and assumes a prosecutorial role, it grossly distorts the fairness of our judicial process. We are grateful that the Second Department recognized this fundamental unfairness and ruled to rectify this miscarriage of justice."

Mitchell did not match the height, age or reported location of the alleged suspect in the nail salon robbery, according to the Legal Aid Society.

Asked about the ruling, Office of Court Administration spokesman Lucian Chalfen said the Second Department's opinion supersedes that of the trial judge, "as the criminal justice system is designed."

A spokesperson for the Queens District Attorney's Office said Tuesday that the office is studying the decision.

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