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THE TRIAL JUDGE’S FAILURE TO ACT ON DEFENSE COUNSEL’S OBJECTION TO T-SHIRTS REMEMBERING THE MURDER VICTIM WAS ERROR; UNDER THE FACTS, THE ERROR WAS HARMLESS.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, with a three-judge concurring opinion, determined defendant was not deprived of a fair trial by the trial judge’s failure to take any action when defense counsel informed him family members were wearing T-shirts remembering the murder victim. The Court of Appeals found the trial judge’s failure to act was error. But, under the facts, the error did not deprive defendant of a fair trial. The fact that the trial judge noticed family members had worn the T-shirts before the day when defense counsel objected did not bring up those prior occurrences on appeal. Defense counsel did not elicit a ruling from the trial judge (by moving for a mistrial) based on the pror occurrences, therefore only the wearing of the T-shirts on the day counsel objected was before the court:

We conclude … that although spectator displays depicting a deceased victim should be prohibited in the courtroom during trial, and although the trial court here erred in refusing to intervene upon defense counsel’s request, the error is subject to harmless error analysis. Defendant contends that the deprivation of his right to a fair trial can never be considered harmless. We agree only insofar as there can be no harmless error analysis if an appellate court concludes that spectator misconduct was so egregious and the trial court’s response so inadequate that the defendant was deprived of a fair trial. Where “there has been such error of a trial court . . . or such other wrong as to have operated to deny any individual defendant his fundamental right to a fair trial, the reviewing court must reverse the conviction and grant a new trial,” without regard to whether the proof of guilt was overwhelming or whether “the errors contributed to the defendant’s conviction”… . Here, however, the spectator conduct was not so egregious that defendant was deprived of a fair trial.

A per se rule of reversal is inappropriate in the context of spectator displays of a deceased victim’s image because such displays may vary widely. For example, the display could range from a small button worn on a spectator’s clothing to a life-size image. A trial court’s refusal to intervene in every such display upon defense counsel’s objection is error. However, not every such display requires the drastic remedy of a mistrial, or an appellate reversal. The trial court or the appellate court, respectively, must make that determination based on the unique circumstances of each case.

Under the particular circumstances of this case, we conclude that the trial court’s error in failing to instruct the spectators to remove or cover the shirts upon defense counsel’s objection is harmless. Consequently, defendant was not deprived of a fair trial. People v Nelson, 2016 NY Slip Op 02554, CtApp 4-5-16

CRIMINAL LAW (THE TRIAL JUDGE’S FAILURE TO ACT ON DEFENSE COUNSEL’S OBJECTION TO T-SHIRTS REMEMBERING THE MURDER VICTIM WAS ERROR; UNDER THE FACTS, THE ERROR WAS HARMLESS)/SPECTATOR DISPLAYS (CRIMINAL LAW, THE TRIAL JUDGE’S FAILURE TO ACT ON DEFENSE COUNSEL’S OBJECTION TO T-SHIRTS REMEMBERING THE MURDER VICTIM WAS ERROR; UNDER THE FACTS, THE ERROR WAS HARMLESS)/APPEALS (PRESERATION OF ERROR, CRIMINAL LAW, DEFENSE COUNSEL’S FAILURE TO ELICIT A RULING ON INSTANCES OF SPECTATOR DISPLAYS ON DAYS PRIOR TO THE DAY WHEN COUNSEL OBJECTED, THE PRIOR INSTANCES WERE NOT BEFORE THE COURT ON APPEAL)/PRESERVATION OF ERROR (CRIMINAL LAW, DEFENSE COUNSEL’S FAILURE TO ELICIT A RULING ON INSTANCES OF SPECTATOR DISPLAYS ON DAYS PRIOR TO THE DAY WHEN COUNSEL OBJECTED, THE PRIOR INSTANCES WERE NOT BEFORE THE COURT ON APPEAL)

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