Opinion
May 16, 1978
Judgments, Supreme Court, New York County, rendered January 6, 1976, convicting defendants of attempted grand larceny in the first degree, possession of weapons in the third degree, conspiracy in the second degree, and unlawful imprisonment in the second degree and sentencing each of them thereupon to various terms of imprisonment, unanimously affirmed. While the record amply demonstrates a rather extensive degree of judicial intervention in questioning witnesses, both prosecution and defense, the court's conduct did not deny defendants a fair trial. Hence, this case is readily distinguishable from People v Ellis ( 62 A.D.2d 469). No doubt, the court could have shown greater restraint but, in fairness, much of its involvement was prompted by impatience with questions on irrelevant subject matter and concern that the trial proceed undiverted from the performance of its essential function as a search for the truth. As to defendants Anthony Biondolillo, Robert Russo, and Julian Bruni, their cases are remitted to the Supreme Court, New York County, for further proceedings pursuant to CPL 460.50 (subd 5).
Concur — Birns, J.P., Evans, Fein, Markewich and Sullivan, JJ.