The Court of Appeals determined that the trial court’s failure to make a finding of necessity re: the defendant’s wearing a stun belt (a restraint device) at trial was not a mode of proceedings error. Therefore the error must be preserved by objection. Here the defendant consented to the restraint. People v Cooke, 2015 NY Slip Op 01557, CtApp 2-24-15
The Fourth Department, in affirming defendant’s first degree murder conviction, determined the court’s failure to place on the record the reason defendant was hand-cuffed during the suppression hearing was harmless error, and the error associated with the defendant’s wearing a stun belt during the trial was waived:
With respect to being restrained in handcuffs, the court denied defense counsel’s request to remove defendant’s handcuffs during the suppression hearing in accordance with the County Sheriff’s policy. Although the court’s response was error, inasmuch as a court “must state a particularized reason for [restraining defendant] on the record” even at a bench trial …, we nevertheless conclude that the error is harmless beyond a reasonable doubt because the error “did not contribute to the [court’s decision]” on the suppression issue … . With respect to the stun belt, we note that the requirement to wear the stun belt is not a mode of proceedings error and, therefore, such an error may be waived … . Here, defendant waived his contention because he agreed to wear the stun belt, despite the court having informed defendant that he was entitled to a hearing to make findings as to the necessity of the belt … . People v Ashline, 2015 NY Slip Op 00037, 4th Dept 1-2-15
The Fourth Department determined the defendant’s wearing of a “stun belt” during his trial (unbeknownst to the judge and to which no objection was made) did not constitute a mode of proceedings error. The dissent argued to the contrary, characterizing the sheriff’s use of the stun belt without the court’s involvement as a usurpation of the power of the court:
County Court could not have granted defendant’s motion under CPL 440.10 (1) (f) unless the unauthorized use of the stun belt at trial constitutes a mode of proceedings error, in which case reversal would have been required on direct appeal if the use of the stun belt had been disclosed on the record … .
We respectfully disagree with our dissenting colleague that the improper use of the stun belt, i.e., at the direction of the Sheriff rather than the court, constitutes a mode of proceedings error.
Indeed, we note that a mode of proceedings error occurs “[w]here the procedure adopted by the court . . . is at a basic variance with the mandate of law” …, and that is not the case here. We further note that in Buchanan the court deferred to the Sheriff, indeed delegated to the Sheriff, the determination whether defendant should wear the stun belt after the court acknowledged that defendant had done nothing to merit it (see Buchanan, 13 NY3d at 3), but the Court of Appeals did not find the error to be a mode of proceedings error. Instead, the Court of Appeals simply ruled that the court failed to exercise its discretion… . People v Schrock, 800, 4th Dept 7-19-13
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