Opinion
December 21, 1990
Appeal from the Supreme Court, Erie County, Kubiniec, J.
Present — Callahan, J.P., Doerr, Denman, Green and Lawton, JJ.
Judgment unanimously reversed on the law and new trial granted. Memorandum: Because defendant, in this nonjury trial, did not sign a written waiver of his right to a trial by jury, his conviction cannot be sustained (see, N Y Const, art I, § 2; CPL 320.10). It is difficult to comprehend why the trial court, having initially recognized this fundamental error, refused to grant defense counsel's timely CPL 330.30 motion (see, Zawistowski v. Arcara, 132 A.D.2d 1000, lv. denied 70 N.Y.2d 604). Additionally, it was error for Supreme Court to close the courtroom, over defendant's objection, without making adequate inquiry or possessing a compelling reason for doing so, during the testimony of the alcoholism counselor (see, People v. Jones, 47 N.Y.2d 409, 413-417, cert. denied 444 U.S. 946). Further, the trial court overstepped its bounds and assumed the role of a prosecutor by engaging in excessive examination of witnesses and, on its own motion, recalling a witness to testify after the close of the prosecution's case (see, People v. Jacobsen, 140 A.D.2d 938, 940; People v. Ellis, 62 A.D.2d 469, 470-471).
We have reviewed defendant's remaining contentions and find them without merit.