| People v Barnes |
| 2012 NY Slip Op 04871 [96 AD3d 1579] |
| June 15, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jessie J.Barnes, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Jeffrey L. Taylor of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Frederick G. Reed, A.J.), renderedMay 26, 2010. The judgment convicted defendant, upon a jury verdict, of burglary in the seconddegree (two counts), grand larceny in the third degree (two counts), grand larceny in the fourthdegree (two counts) and criminal mischief in the third degree (two counts).
It is hereby ordered that the judgment so appealed from is unanimously reversed on the lawand a new trial is granted.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial oftwo counts each of burglary in the second degree (Penal Law § 140.25 [2]), grand larcenyin the third degree (§ 155.35 [1]), grand larceny in the fourth degree (§ 155.30 [7]),and criminal mischief in the third degree (§ 145.05 [2]). The convictions arise from tworesidential burglaries committed by defendant in the Town of Victor on the same day. We agreewith defendant that County Court erred in ordering him to wear a stun belt and then shackles attrial without first making "findings on the record" concerning the necessity for such restraints (People v Buchanan, 13 NY3d 1, 4[2009]; see People v Cruz, 17 NY3d941, 944-945 [2011]; see generally Deck v Missouri, 544 US 622, 624 [2005]).Although the court set forth a reasonable explanation for its use of restraints in response to apost-trial motion by defendant challenging, inter alia, the propriety of the use of the restraints, thecourt's post hoc explanation does not suffice inasmuch as the court was required to haveconsidered the relevant factors and made a sufficient inquiry "before" making a findingthat restraints were necessary (Buchanan, 13 NY3d at 4 [emphasis added]).
We reject the People's contention that reversal is not required because the error is harmless.Even assuming, arguendo, that the error is harmless with respect to the use of the shackles (see People v Clyde, 18 NY3d 145,153-154 [2011]), we note that the Court of Appeals did not apply harmless error analysis inBuchanan to the improper use of a stun belt, and Cruz (17 NY3d at 945 n) makesclear that the improper use of a stun belt is not subject to harmless error analysis.
We reject defendant's further contentions that the court erred in denying his pretrial motion todismiss the indictment based on the prosecutor's allegedly improper impeachment of [*2]him before the grand jury regarding his criminal record (seePeople v Burton, 191 AD2d 451 [1993], lv denied 81 NY2d 1011 [1993]), and thatthe court erred in denying his motion for a trial order of dismissal based on legally insufficientevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). We need notaddress defendant's remaining contentions in light of our decision to grant defendant a new trial.Present—Scudder, P.J., Smith, Carni, Lindley and Martoche, JJ.