| People v Schrock |
| 2012 NY Slip Op 06667 [99 AD3d 1196] |
| October 5, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Michael L.Schrock, Appellant. |
—[*1] Michael L. Schrock, defendant-appellant pro se. Lori Pettit Rieman, District Attorney, Little Valley, for respondent.
Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in theFourth Judicial Department, from an order of the Cattaraugus County Court (Michael L. Nenno,J.), entered January 4, 2011. The order denied the CPL 440.10 motion of defendant.
It is hereby ordered that the case is held, the decision is reserved and the matter is remitted toCattaraugus County Court for further proceedings.
Memorandum: Defendant appeals from an order denying his motion to vacate the judgmentof conviction pursuant to CPL 440.10. The judgment had been entered following a jury trial atwhich defendant was found guilty of having committed numerous felonies, including attemptedmurder in the first degree and robbery in the first degree. In support of his CPL 440.10 motion,defendant contended that he is entitled to a new trial because he was improperly required to weara stun belt at trial. Defendant further contended that he is entitled to a new trial because his trialattorney was ineffective for failing to object to the use of the stun belt and for failing "toadequately develop" his insanity defense. According to defendant, in pursuing that defense histrial attorney should have interviewed defendant's fellow inmate, who had provided the attorneywith a written statement in which he claimed to have overheard various jail deputies talkingabout defendant's mental condition. County Court denied the motion following a hearing.
We agree with the court that defendant was not deprived of effective assistance of counsel.As the court properly determined, defense counsel was not ineffective in failing to object to theuse of the stun belt inasmuch as the seminal case regarding the use of stun belts, People v Buchanan (13 NY3d 1[2009]) was not decided until approximately two years after defendant's trial. We note thatdefendant wore the stun belt for only one day of trial, during the testimony of the People'srebuttal witness, and he never complained to anyone—including his attorney—abouthaving to wear it. In addition, there is no indication in the record that the stun belt affecteddefendant's ability to communicate with his attorney. We also reject defendant's claim thatdefense counsel did not adequately develop his insanity defense by, e.g., failing to interview afellow inmate, and thus was ineffective. Even assuming, arguendo, that the fellow [*2]inmate provided a written statement to defendant's attorney settingforth that he overheard jail deputies discussing defendant's mental condition, we conclude thatthe fellow inmate possessed only hearsay information and thus could not have been called as awitness at trial. The record also demonstrates that defendant's attorney called numerous witnessesat trial to support the insanity defense, including employees of the jail who observed defendant'sbehavior while incarcerated.
We now turn to defendant's contention that he was improperly required to wear the stun belt.As the court recognized, the use of the stun belt in this case was improper underBuchanan because such use was not approved by the court; in fact, the court was notaware that the Sheriff had outfitted defendant with the stun belt. Nevertheless, the courtdetermined that, although the use of the stun belt was improper, the error was harmless in light ofthe "totality of the evidence." As we recently held in People v Barnes (96 AD3d 1579, 1579-1580 [2012]), the improperuse of a stun belt is not subject to harmless error analysis (see People v Cruz, 17 NY3d 941, 945 n [2011]).
Although there may be other reasons to justify the denial of defendant's motion, the onlyissues that we may consider on this appeal are those that "may have adversely affected theappellant" (CPL 470.15 [1]; see Peoplev Concepcion, 17 NY3d 192, 194-195 [2011]; People v LaFontaine, 92 NY2d470, 473-474 [1998]). Thus, our review is limited to the issues determined by the court indenying the motion, i.e., that defense counsel was not ineffective and that the error in requiringdefendant to wear a stun belt is harmless, and for the reasons set forth herein we conclude thatthe court erred in determining that harmless error analysis is applicable. We therefore hold thiscase, reserve decision, and remit the matter to County Court to rule upon any other issues raisedby the People in opposition to the motion. Present—Scudder, P.J., Fahey, Lindley,Sconiers and Martoche, JJ.