People v. Facey, 104 A.D.3d 788 (N.Y. App. Div. 2013). · Go Syfert
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People v. Facey, 104 A.D.3d 788 (N.Y. App. Div. 2013). Cases Citing This Book View Copy Cite
12 citation events (12 in the last 25 years) across 3 distinct courts.
Top citers, strongest first. 8 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Bae
N.Y. App. Div. · 2016 · confidence medium
The defendant’s contention that the Supreme Court erred in denying his request for a missing witness charge is only partially preserved for appellate review since some of the specific arguments he now makes were not raised at trial (see CPL 470.05 [2]; People v Facey, 104 AD3d 788, 789 [2013]; People v Spinelli, 79 AD3d 1152 [2010]; People v Lopez, 19 AD3d 510, 511 [2005]).
discussed Cited as authority (rule) People v. Baranov
N.Y. App. Div. · 2014 · confidence medium
In this regard, the court’s practice risks erroneously conveying to the jury that the court is aligned with the party or counsel whose role the court has assumed in the readback (see People v Feurtado, 112 AD3d 962, 962 [2013]; People v Facey, 104 AD3d 788, 789 [2013]; People v Brockett, 74 AD3d at 1221 ). “[A]s a general matter, a trial judge should shun engaging in readbacks of testimony.
discussed Cited as authority (rule) People v. Townsend
N.Y. App. Div. · 2014 · confidence medium
Although his counsel failed to object to the trial court’s improper participation in the reading back of testimony requested by the jury (see People v Feurtado, 112 AD3d 962, 962 [2013]; People v Facey, 104 AD3d 788, 789 [2013]; People v Brockett, 74 AD3d 1218, 1221 [2010]), the court’s error was harmless under the circumstances of this case, and counsel’s failure to object did not deprive the defendant of a fair trial (see People v Caban, 5 NY3d at 155-156 ; People v Pedraza, 56 AD3d 390 , 392 [2008]).
discussed Cited as authority (rule) People v. Townsend
N.Y. App. Div. · 2014 · confidence medium
Although his counsel failed to object to the trial court’s improper participation in the reading back of testimony requested by the jury (see People v Feurtado, 112 AD3d 962, 962 [2013]; People v Facey, 104 AD3d 788, 789 [2013]; People v Brockett, 74 AD3d 1218, 1221 [2010]), the court’s error was harmless under the circumstances of this case, and counsel’s failure to object did not deprive the defendant of a fair trial (see People v Caban, 5 NY3d at 155-156 ; People v Pedraza, 56 AD3d 390 , 392 [2008]).
discussed Cited as authority (rule) People v. Feurtado
N.Y. App. Div. · 2013 · confidence medium
In any event, under the circumstances of this case, any error the court may have committed by participating in the readbacks was harmless and did not deprive the defendant of a fair trial (see People v Crimmins, 36 NY2d 230, 237 [1975]; People v Facey, 104 AD3d 788, 789 [2013]).
discussed Cited as authority (rule) People v. Feurtado
N.Y. App. Div. · 2013 · confidence medium
In any event, under the circumstances of this case, any error the court may have committed by participating in the readbacks was harmless and did not deprive the defendant of a fair trial (see People v Crimmins, 36 NY2d 230, 237 [1975]; People v Facey, 104 AD3d 788, 789 [2013]).
discussed Cited "see" People v. Holiday
N.Y. App. Div. · 2022 · signal: see · confidence high
However, where the jury requests the readback of certain testimony, the trial judge should not participate, as such "practice risks erroneously conveying to the jury that the court is aligned with the party or counsel whose role the court has assumed in the readback" ( People v [*2]Baranov , 121 AD3d 706, 708 ; see People v Facey , 104 AD3d 788, 789 ; People v Brockett , 74 AD3d 1218, 1221 ).
discussed Cited "see, e.g." People v. Alcide
NY · 2013 · signal: see also · confidence medium
The Second Department in People v Brockett ( 74 AD3d 1218 [2d Dept 2010]), a case remitted for a new trial because of a charging error, stated in dictum that the trial judge “should not have participated as a reader when the jury asked for a read-back of testimony,” warning that “[w]hen, during a read-back of testimony, a trial judge assumes the role of a witness or inquiring counsel, he or she may unwittingly and erroneously convey to [the] jury that the court is aligned with the party or counsel whose role the court has assumed in the read-back” (id. at 1221; see also People v Facey,…
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
Earl Facey
Appellate Division of the Supreme Court of the State of New York.
Mar 13, 2013.
104 A.D.3d 788
Cited by 8 opinions  |  Published

Appeal by the defendant from a judgment of the Supreme Court, Kings' County (McKay, J.), rendered November 30, 2010, convicting him of criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

[*789] Ordered that the judgment is affirmed.

The defendant’s contention that the trial court erred in denying his request for a missing witness charge is only partially preserved for appellate review since some of the specific arguments he now makes were not raised before the trial court (see CPL 470.05 [2]; People v Spinelli, 79 AD3d 1152 [2010]; People v Lopez, 19 AD3d 510, 511 [2005]). In any event, this contention is without merit, as the defendant failed to demonstrate that the witness’s testimony would have been noncumulative (see People v Edwards, 14 NY3d 733, 735 [2010]; People v Buckler, 39 NY2d 895, 897 [1976]; People v Stewart, 96 AD3d 880, 881 [2012]; People v Lemke, 58 AD3d 1078, 1079 [2009]; People v Watson, 220 AD2d 333 [1995]).

Although the defendant’s contention regarding the trial court’s participation in reading back certain trial testimony is unpreserved for appellate review, we nevertheless reach the issue in the exercise of our interest of justice jurisdiction. The defendant is correct that the court erred in this respect. We take this opportunity to emphasize that “[w]hen, during a read-back of testimony, a trial judge assumes the role of a witness or inquiring counsel, he or she may unwittingly and erroneously convey to [the] jury that the court is aligned with the party or counsel whose role the court has assumed in the read-back” (People v Brockett, 74 AD3d 1218, 1221 [2010]; see generally People v De Jesus, 42 NY2d 519 [1977]). While the defendant’s contention has merit, the error was harmless, and under the circumstances of this case, the error did not deprive the defendant of a fair trial (see People v Crimmins, 36 NY2d 230 [1975]).

Contrary to the defendant’s contention, he was not deprived of the effective assistance of counsel (see People v Benevento, 91 NY2d 708, 712 [1998]). Skelos, J.P, Leventhal, Hall and Sgroi, JJ., concur.