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ALTHOUGH DEEMED HARMLESS, IT WAS ERROR TO HAVE THE DEFENDANT SHACKLED DURING A PORTION OF THE TRIAL (THIRD DEPT).

The Third Department determined defendant should not have been shackled during the trial, but deemed the error harmless:

Defendant … contends that County Court erred in allowing him to be shackled during a portion of the trial. It is well settled that “a defendant has a right to be free of visible restraints during criminal proceedings unless the trial court states a case-specific reason for their use” … . The use of shackles has been deemed appropriate “for reasons of security, to prevent disruption of the trial, harm to those in the courtroom, escape or release of the accused, or the commission of other crimes” … . The record discloses that, in making its determination, County Court considered the nature of the crime with which defendant was charged, deferred to the correction officers’ recommendations and referenced defendant’s verbal outbursts throughout the morning. These are insufficient reasons to restrain defendant … .

… [W]e are satisfied that this error was harmless as the evidence demonstrated that defendant’s guilt was overwhelming and there was no reasonable possibility that the error affected the outcome of the trial. We are even more confidant of this conclusion in light of the fact that County Court gave curative instructions to the jury on numerous occasions — including during jury selection, at the commencement of the trial and during final jury instructions — and especially considering that the jury was aware that defendant was already incarcerated … . People v Banch, 2021 NY Slip Op 05894, Third Dept 10-28-21

 

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