The Bronx is a tough place.  How tough, however, has now been answered in the First Department’s decision in People v. Leggett, where the carjacking conviction of David Leggett was unanimously reversed after Acting Supreme Court Justice Robert Neary pushed the envelope too far in denigrating defense counsel, David N. Levine.

Neary had made several “unfortunate comments,” the panel said. For example, during Levine’s cross-examination of the alleged victim of the attempted carjacking, Neary made and sustained his own objection saying that the line of questioning had been irrelevant the first time it had been raised and “to repeat it a second time is silly.”

At one point, when Levine sought to argue after the prosecutor had raised an objection, Neary told Levine, “You’re turning this into a comedy and it’s not.”

“More egregiously,” the panel wrote, Neary, in denying one of Levine’s objections to the prosecutor’s summation, said, “Would you behave like a professional, please and not a clown.”

Ouch.  It’s not that the court thought Levine was doing such a great job of it, but that Justice Neary’s “injudicious remarks, in the presence of the jury, were unjustified.” 

Should an attorney’s conduct warrant admonishment, the panel noted, the proper course is to take up the matter with the lawyer outside the presence of the jury. Also, once an injudicious remark has been made, a trial judge “should issue curative instructions.”

What’s surprising, yet not, is that Justice Neary is hardly new to the system.  In fact, he’s been around the block more than a few times.

Neary had been a prosecutor in the Westchester district attorney’s office for 28 years before joining the bench as a Westchester County Court judge in 2003. Three years later New York Gov. George E. Pataki appointed him to the Court of Claims and he was re-appointed to a full 10-year term by Gov. David A. Paterson in 2008.

After hearing criminal cases in Westchester for five years, Neary was transferred in 2008 to the Bronx to help cope with the rising felony backlog under the experimental merged Criminal/Supreme Court.

Of course, it may have something to do with his experience in Westchester County, just north of The Bronx and yet a world away.  Perhaps lawyers trying cases in The Bronx are bit more assertive in their methods than in the genteel northern suburbs.  Or perhaps Justice Neary just couldn’t keep his personal feelings about how Levine tried his case out of the mix.

One of the fundamental elements of an adversary system is the ability of a lawyer to try his case without the court interfering.  This isn’t to say that the court doesn’t make its rulings, but that it let’s lawyers pursue the tactics they believe to be in their client’s best interests in whatever way they believe will work.  Whether it’s the judge who makes, and of course sustains, his own objections (as happened here), or the judge that asks a witness questions, particularly objectionable questions, to compensate for evidence missed, the judge’s insertion presents an impossible conundrum. 

The old joke, of course, is the lawyer, after a judge cuts him off and takes over, telling the judge that if he’s going to try his case for him, could he at least do a better job of it.  But it’s no joke when you’re on trial. 

Regardless of whether Justice Neary thought Levine was the worst trial lawyer in the history of the Bronx (and I’m not suggesting anything of the sort, just to be clear), ridiculing counsel in front of the jury is purely personal indulgence and never an acceptable reaction. 

So now that the First Department reversed, and the question of Justice Neary’s temperament and discretion are on the table, there’s one question that remains unanswered:  Is Justice Neary going back to a trial part in the Bronx?  Is he back on the bench?  Is that it?