Biancono v Pierre

[*1] Biancono v Pierre 2005 NY Slip Op 51879(U) [10 Misc 3d 1051(A)] Decided on November 21, 2005 Civil Court Of The City Of New York, Kings County Nadelson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 21, 2005
Civil Court of the City of New York, Kings County

Adrian Biancono and JUDITH HOPPES, Plaintiffs

against

Jean Pierre and ABDUL HAI, Defendants



1450/00

Eileen N. Nadelson, J.

Motion for a Mistrial

During the cross-examination of co-defendant Hai in this personal injury action arising out of an automobile accident, counsel for co-defendant Pierre began questioning Defendant Hai on certain aspects of his testimony given at his Examination Before Trial (EBT) several years earlier. Defendant Hai is not a native English speaker, and at trial an official court interpreter was provided for him. At the start of his cross-examination, it was evidenced that no translator was afforded him at the EBT.

Co-Defendant Pierre's counsel questioned Defendant Hai about statements he allegedly made after the accident. On the witness stand, Defendant Hai stated that Defendant Pierre offered him money not to call the police after the accident occurred. Counsel attempted to impeach the party-witness by reading certain portions of his EBT. At each point, Co-Defendant Hai repeatedly stated that Co-Defendant Pierre offered him money at the time of the occurrence. The exact statement, according to the EBT transcript, was: "He said 'sorry.' Then I say 'no damage, call police.' He tried to- he wants scratch money. He asked me to fix. I said no, just call police." It is noted that Co-Defendant Pierre suffered no damage to his taxi cab, whereas Co-Defendant Hai's car was slightly scratched.

Because of Co-Defendant Hai's difficulty with the English language, this question and answer was repeated nine times, with the party-witness interrupting to state that it was Co-Defendant Pierre who offered him money to pay for the scratches to his car.

At this point, Hai's counsel objected to the question being repeated for a tenth time, stating that it had been asked and answered. Co-Defendant Pierre's counsel, in response to the objection, said that "He wanted scratch money, meaning my driver." The court noted that the jury had become restless, and were fidgeting in their seats. [*2]

In response to the objection before it, the court stated:

No, no. you're misreading it. He's talking about the taxi driver saying you give me

scratch money. You fix it. That's what he's talking about.

Pierre's counsel objected to the court's statement made in front of the jury, and requested a mistrial, which the court denied. The motion was reiterated after the jury returned its verdict in favor of Plaintiffs.

All judges are required to perform their duties without bias or prejudice and to conduct trials in a patient, dignified and courteous manner. 22 NYCRR 100.3(B)(3), (4). However, it is well settled that a busy court must attempt to keep the respective parties focused upon a succinct presentation of evidence relevant to the issues to be decided, and to this end the court has the power to insure an orderly and expeditious trial. Douglas v. Douglas, 281 AD2d 709, 722 N.Y.S.2d 87 (3d Dept. 2001).

A motion for a mistrial is directed to the sound discretion of the trial court. Mulle v. Weinstein, 141 AD2d 517, 529 N.Y.S.2d 136 (2d Dept. 1988). The court believes that it acted in an even-handed manner and exercised its discretion in limiting testimony that was repetitive. Driscoll v. Akron Fire Company, Inc., 251 AD2d 1042, 675 N.Y.S.2d 264 (4th Dept. 1998). In determining counsel's prior motion for a new trial based on the weight of the evidence, this court concluded that the jury's ultimate conclusion was based on a fair interpretation of the facts as they were presented. Biancono v. Pierre and Hai, 2005 NY Slip Op. 51806(U). Therefore, the court rejects counsel's contention that his client was deprived of a fair trial.

Based on the foregoing, the court affirms its initial decision not to declare a mistrial.

Dated: November 21, 2005

__________________________

EILEEN N. NADELSON, J.C.C.