        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

825
KA 15-00954
PRESENT: PERADOTTO, J.P., CARNI, DEJOSEPH, NEMOYER, AND CURRAN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                    V                             MEMORANDUM AND ORDER

KHADIJAH LANE, DEFENDANT-RESPONDENT.


WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR APPELLANT.

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County (John
J. Brunetti, A.J.), dated April 17, 2015. The order granted the
motion of defendant to suppress physical evidence.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed and the indictment is dismissed.

     Memorandum: On appeal from an order granting defendant’s motion
to suppress physical evidence, the People contend that Supreme Court
failed to properly credit their witnesses and erred in granting the
motion. We reject that contention. “ ‘It is well settled that the
suppression court’s credibility determinations and choice between
conflicting inferences to be drawn from the proof are granted
deference and will not be disturbed unless unsupported by the
record’ ” (People v Sylvester, 129 AD3d 1666, 1667, lv denied 26 NY3d
1092).   Here, the court found the testimony of one of the police
witnesses to be “unworthy of belief” and therefore concluded that “the
People failed to meet the burden of establishing the legality of the
police action in the first instance” (People v Rumph, 199 AD2d 434,
435). We conclude that the court’s credibility determination is
supported by the record, and thus we see no basis to disturb it (see
Sylvester, 129 AD3d at 1667).

     Contrary to the People’s further contention, the court did not
“assume the role of defense counsel.” “A [t]rial [j]udge in a
criminal action is not merely an observer nor only a referee. It is
the [j]udge’s duty to assume an active role in the examination of
witnesses where proper or necessary to elicit or develop significant
facts, to clarify or enlighten an issue, or to facilitate or expedite
the orderly progress of the trial” (People v Ellis, 62 AD2d 469, 470).
There is no evidence in this record that the court acted improperly;
rather, upon review of the hearing transcript, we conclude that the
                                 -2-                           825
                                                         KA 15-00954

court attempted to clarify issues because the police officer’s
testimony was confusing and contradictory.

     In view of our determination, the indictment must be dismissed
because “ ‘the unsuccessful appeal by the People precludes all further
prosecution of defendant for the charges contained in the accusatory
instrument’ ” (People v Moxley, 137 AD3d 1655, 1656-1657).




Entered:   October 7, 2016                      Frances E. Cafarell
                                                Clerk of the Court
