Opinion
January 26, 1976
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered December 6, 1972, convicting him of assault in the third degree and possession of a weapon, dangerous instrument and appliance, as a misdemeanor, upon a jury verdict, and imposing sentence. Judgment reversed, on the law and as a matter of discretion in the interest of justice, and indictment dismissed. Notwithstanding the evidence of defendant's guilt, we believe that the trial court's disparagement of defense counsel and its undue participation during the course of the trial require that the judgment be reversed (see People v Richburg, 47 A.D.2d 909; People v Setaro, 44 A.D.2d 847; People v Askew, 42 A.D.2d 717; cf. People v Mendes, 3 N.Y.2d 120, 121). Furthermore, since defendant has served his sentence, the indictment should be dismissed (see People v Kvalheim, 17 N.Y.2d 510). Rabin, Acting P.J., Hopkins, Latham, Margett and Christ, JJ., concur.