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THE TRIAL JUDGE’S FAILURE TO PUT ON THE RECORD THE REASONS FOR REQUIRING DEFENDANT TO WEAR A STUN BELT WAS NOT A MODE OF PROCEEDINGS ERROR AND COUNSEL’S FAILURE TO OBJECT WAS NOT INEFFECTIVE ASSISTANCE, THE RELEVANT PROCEDURAL REQUIREMENTS WERE NOT ANNOUNCED BY THE COURT OF APPEALS UNTIL EIGHT YEARS AFTER THE TRIAL; THE LOSS OF TRIAL EXHIBITS DEMONSTRATING WHETHER THE PEREMPTORY JUROR CHALLENGES WERE EXHAUSTED IS HELD AGAINST THE DEFENDANT BECAUSE OF HIS FAILURE TO SEEK A TIMELY RECONSTRUCTION HEARING (FOURTH DEPT)

The Fourth Department affirmed defendant’s murder conviction and the denial of his motion to vacate the judgment of conviction in a decision addressing several substantive issues not summarized here. The trial court’s failure to put on the record the reasons for requiring defendant to wear a stun belt during trial was not a mode of proceedings error and the failure to object was not ineffective assistance because the relevant procedural requirements were not announced by the Court of Appeals until eight years after defendant’s trial. The apparent loss of exhibits which would demonstrate whether defendant exhausted the peremptory juror challenges was held against the defendant because of the passage of time and the failure to seek a timely reconstruction hearing:

Assuming, arguendo, that defendant was forced to wear a stun belt, we need not reverse the court’s order denying defendant’s CPL 440.10 motion because defendant failed to object to the use of a stun belt, and the improper use of a stun belt is not a mode of proceedings error … . Thus, the failure to object to the stun belt’s use means that “reversal would not have been required” on a direct appeal … . As a result, even on the merits, there is no basis upon which to vacate the judgment of conviction … . Defendant further contends that trial counsel was ineffective in failing to object to the use of a stun belt. We disagree. The seminal case requiring that a court place findings of fact on the record before requiring a defendant to wear a stun belt is … , which was decided eight years after the judgment in this case. Although the Court’s decision in Buchanan “did not announce “new” rules of law’ “… , we nevertheless conclude that trial counsel was not ineffective in failing to anticipate the procedural requirements established by the Court’s decision in Buchanan … . * * *

… [D]efendant has provided no explanation for the 14-year delay between the judgment and direct appeal, and “there was nothing to prevent [defendant] from pursuing his appeal” … . Moreover, defendant “has not shown that, if he had acted diligently, an adequate reconstruction of those proceedings could not have been achieved” … . Had defendant, through his former, privately retained appellate counsel, perfected his appeal in a timely manner, it is possible that the slips of paper might still have been with the file, and it is highly probable that the relevant parties would have been able to recall whether defendant exhausted his peremptory challenges. Where, as here, the lengthy delay is attributable to a defendant’s action or inaction, the weight of appellate authority holds that the absence of the relevant transcripts or exhibits should be held against the defendant and the judgment affirmed … . People v Osman, 2019 NY Slip Op 05903, Fourth Dept 7-31-19

 

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