| People v Clyde |
| 2010 NY Slip Op 03567 [72 AD3d 1538] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RaymondClyde, Appellant. (Appeal No. 1.) |
—[*1] Raymond Clyde, defendant-appellant pro se. Jon E. Budelmann, District Attorney, Auburn (Christopher T. Valdina of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Robert B. Wiggins, J.), renderedMarch 24, 2008. The judgment convicted defendant, upon a jury verdict, of assault in the seconddegree (two counts), unlawful imprisonment in the first degree and promoting prison contrabandin the first degree.
It is hereby ordered that the judgment so appealed from is reversed on the law and a new trialis granted on counts two through five of the indictment.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon ajury verdict of, inter alia, two counts of assault in the second degree (Penal Law § 120.05[7]). We agree with defendant that County Court erred in failing to articulate a reasonable basison the record for its determination to restrain defendant in shackles during the trial. "Theshackling of a defendant in the presence of the jury is inherently prejudicial and constitutesreversible error unless a reasonable basis therefor is in the record or it is clear that the jury wasnot prejudiced thereby" (People v Vigliotti, 203 AD2d 898, 898 [1994]; see generallyPeople v Rouse, 79 NY2d 934, 935 [1992]; People v Mendola, 2 NY2d 270 [1957]).Inasmuch as the record establishes that the shackles were visible to the jury (cf. People vTascarella, 227 AD2d 888, 888-889 [1996], lv denied 89 NY2d 867 [1996]), wecannot agree with the conclusion of the dissent that the jury was not prejudiced thereby and thusthat the error is harmless (cf. People v Sykes, 224 AD2d 986 [1996]; Vigliotti,203 AD2d at 898). To the contrary, "where a court, without adequate justification [articulated onthe record], orders the defendant to wear shackles that will be seen by the jury, the defendantneed not demonstrate actual prejudice to make out a due process violation" (Deck vMissouri, 544 US 622, 635 [2005]). In view of our determination of defendant's contention,we need not consider the remaining contentions in appeal No. 1 raised by defendant in his mainbrief and pro se supplemental brief. In the interest of judicial economy, however, we note that wealso agree with defendant that the court abused its discretion in refusing to preclude theprosecutor from questioning medical experts on the issue whether the victim's injuries met thelegal definitions of physical injury and serious physical injury set forth in the Penal Law (seePeople v Forcione, 156 AD2d 952 [1989], [*2]lvdenied 75 NY2d 919 [1990]). "[T]he ultimate determination whether those injuries satisfiedthe statutory definition[s] was not beyond the ken of the typical juror" (id. at 952).
In appeal No. 2, the People appeal from an order insofar as it granted that part of defendant'smotion for a trial order of dismissal pursuant to CPL 290.10 (1) with respect to count one of theindictment, charging attempted rape in the first degree (Penal Law §§ 110.00,130.35 [1]). We conclude that the court properly granted that part of defendant's motioninasmuch as the requisite evidence of defendant's intent to rape the victim by the use of forciblecompulsion, a necessary element of the crime charged, was legally insufficient (cf. People v Lamagna, 30 AD3d1052, 1053 [2006], lv denied 7 NY3d 814 [2006]; see generally People vBleakley, 69 NY2d 490, 495 [1987]).
All concur except Scudder, P.J., who dissents and votes to affirm in the followingmemorandum.
Scudder, P.J. (dissenting). In appeal No. 1, the majority concludes that the failure of CountyCourt to articulate a reasonable basis on the record for its determination that defendant should beshackled during trial requires reversal, in the absence of a showing that defendant was notprejudiced by reason thereof. The majority also concludes that the court erred in admitting inevidence two medical opinions on the issues of whether defendant's actions created a substantialrisk of serious physical injury with respect to one of the individuals assaulted (victim No. 1), andwhether the second individual assaulted (victim No. 2) sustained a physical injury. In appeal No.2, the majority concludes that the evidence of defendant's intent to rape victim No. 1 is legallyinsufficient. I respectfully dissent in both appeals.
In appeal No. 1, the majority correctly concludes that the court erred in failing to articulateon the record a reasonable basis for its determination that shackles were warranted (see People v Buchanan, 13 NY3d1, 4 [2009]; People v Rouse, 79 NY2d 934, 935 [1992]). I further agree with themajority that such shackling was prejudicial to defendant, and that the error implicates aconstitutional right. However, I disagree with the majority that the error is not subject toharmless error analysis.
Victim No. 1, a female civilian motor vehicle operator at Auburn Correctional Facility, waswalking to the storehouse and loading dock area of the prison when she was attacked bydefendant, an inmate. Defendant grabbed her from behind, put her in a headlock close to hisbody, and covered her mouth and nose with his hand. When victim No. 1 struggled, defendantslammed her against the wall, face first, and he shoved a sock or towel that he had brought to thescene into her mouth, making it difficult for her to breathe. Victim No. 1 managed to dislodgethe sock or towel sufficiently to enable her to scream for help, but defendant warned her that hewould kill her if she did not shut up. He then shoved his fist into her kidney, inserted the sock ortowel back into her mouth, and pushed her to her knees onto the floor. He grabbed her by herhair and, according to victim No. 1, he yanked her head back as far as he could. Hesimultaneously covered her mouth and nose, thereby cutting off her air supply. Victim No. 1testified that she could feel her eyes rolling into the back of her head and that she started to passout, but she was able to move defendant's hands and dislodge the sock or towel so that she couldbreathe, whereupon she begged defendant not to hurt her. Defendant instead shoved victim No. 1onto the floor, face first, bouncing her face off of the cement in the process. Victim No. 1 tried toscream, but defendant pushed the sock or towel back into her mouth and told her to shut up,using expletives. He then punched her in the face, dazing her, and he pulled one of her handsbehind her back and tied that hand with something that he had brought to the scene. When victimNo. 1 refused to give defendant her other hand, defendant sat on her back while straddling herwith his legs, and he grabbed her other hand and tied her hands together.
At that moment, victim No. 2, another prison employee, approached the scene in order toinvestigate the noise. From a security mirror located by a corner of the hallway, he observeddefendant [*3]straddling the back of victim No. 1 while tying herhands together with white strips of cloth. Victim No. 2 then activated an alarm, turned the cornerand yelled. Defendant climbed off the victim's back and proceeded to run down the hall towardvictim No. 2, covering his face with his left arm. Although victim No. 2 managed to tripdefendant, defendant stood up and threw victim No. 2 against the wall. He then punched victimNo. 2 in the head, knocking him unconscious.
Defendant's assault of victim No. 2 was witnessed by a third employee, who saw defendantrun into the loading dock area. A lockdown was ordered for the entire area, and defendant wasthereafter found in the yard, soaked with sweat and behaving in a nervous manner. Victim No. 2and the third employee thereafter identified defendant as the perpetrator. New York State Policeinvestigators later retrieved a sock, brown leather work gloves, a roll of tape, a green towel, anda torn piece of sheet from the hallway where victim No. 1 was attacked. When analyzed forbodily fluids, both gloves, the green towel, and the tee shirt worn by victim No. 1 testifiedpositive for seminal fluid. Sperm was found on the left glove and the green towel, whichmatched a buccal swab subsequently obtained from defendant.
In my view, the above-described evidence, which was virtually uncontroverted at trial,overwhelmingly proved defendant's perpetration of the crimes in appeal No. 1. Applying the testfor constitutional harmless error, I conclude that "in light of the totality of the evidence, there isno reasonable possibility" that the improper shackling of defendant contributed to his convictionand thus that the error is harmless beyond a reasonable doubt (People v Douglas, 4 NY3d 777,779 [2005]; see generally People v Crimmins, 36 NY2d 230, 237 [1975]; People vCrampton, 107 AD2d 998, 999 [1985]). Notably, the jury necessarily knew from the factsand elements of the crimes charged that defendant was incarcerated in a state correctional facilitywhen he committed the crimes (seegenerally People v Brunson, 68 AD3d 1551, 1556 [2009]). Also, the court properlycharged the jury with respect to the presumption of innocence and directed that the verdict couldbe based only on the evidence presented at trial.
I do not agree with the majority that harmless error analysis is inapplicable to the type oferror committed here, i.e., where the court fails to articulate a reasonable basis on the record forits determination to restrain a defendant, nor do I see any reason why this particular error shouldbe treated differently from other errors that implicate constitutional rights (cf. People vLopez, 207 AD2d 658, 659 [1994], lv denied 84 NY2d 937 [1994]). The recognitionthat the error can be harmless and that reversal is not required per se whenever a defendant isimproperly restrained at trial are supported by the fact that proper limiting or cautionaryinstructions can negate the effect of such an error (see People v Gilmore, 12 AD3d 1155, 1156 [2004]; People vFelder [appeal No. 2], 201 AD2d 884, 885 [1994], lv denied 83 NY2d 871 [1994]),and by the fact that reversal is not required where a jury's observation of a defendant in restraintsis merely inadvertent (see People v Harper, 47 NY2d 857, 858 [1979]; People v Montgomery, 1 AD3d984, 985 [2003], lv denied 1 NY3d 631 [2004]; People v Russ, 300 AD2d1031, 1032 [2002], lv denied 99 NY2d 632 [2003]). Whether an error is harmless entailsan analysis different from that applied in determining whether a defendant is prejudiced by theerror. As previously noted, I agree with the majority that defendant was prejudiced.Nevertheless, I conclude that, in view of the overwhelming evidence, there is no reasonablepossibility that such prejudice contributed to the verdict (see People v Gonzalez, 55AD2d 656 [1976]; see generally Crimmins, 36 NY2d at 237). I therefore would affirmthe judgment in appeal No. 1 despite the court's error in failing to articulate a reasonable basisfor defendant's restraints. I also would affirm the judgment despite the arguably erroneousadmission in evidence of the aforementioned testimony of the two medical witnesses. Because ofthe overwhelming evidence of defendant's guilt, there is no significant possibility that the jurywould have acquitted defendant if that testimony had not been permitted (see Crimmins,36 NY2d at 242).[*4]
In appeal No. 2, I do not agree with the majority that theevidence is legally insufficient to establish defendant's intent to rape victim No. 1. "A verdict islegally sufficient when, viewing the facts in [the] light most favorable to the People, 'there is avalid line of reasoning and permissible inferences from which a rational jury could have foundthe elements of the crime proved beyond a reasonable doubt' " (People v Danielson, 9 NY3d 342,349 [2007]; see generally People v Bleakley, 69 NY2d 490, 495 [1987]). In this case,defendant grabbed victim No. 1 from behind, and he assaulted her and restrained her using itemsthat he had assembled prior to the crime and had brought with him to the scene. Sperm wasfound on two of those items, and that sperm matched a buccal swab obtained from defendant. Inaddition, seminal fluid was found on four of the items, including the tee shirt worn by victim No.1. While defendant's conduct may have been consistent with an attempt to escape rather than anattempt to rape victim No. 1, the test for legal sufficiency does not require that the crime inquestion be the only possible crime for which there is legally sufficient evidence. It requires onlythat the evidence, when viewed in the light most favorable to the People, establish a valid line ofreasoning and permissible inferences from which a rational jury could find that the elements ofthe crime in issue were proven beyond a reasonable doubt. In my view, given the existence ofseminal fluid at the scene, the jury could rationally infer that defendant's intent in restrainingvictim No. 1 was to rape her. I therefore would reverse the order insofar as appealed from inappeal No. 2, deny defendant's motion for a trial order of dismissal in its entirety, reinstate countone of the indictment and the verdict convicting defendant of that count, and remit the matter toCounty Court for sentencing on the conviction of attempted rape in the first degree.Present—Scudder, P.J., Sconiers, Green and Gorski, JJ.