The opinion of the court was delivered by: Pigott, J.:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
We hold that harmless error analysis is applicable when a trial court has ordered the use of visible shackles without adequate justification articulated on the record (see Deck v Missouri (544 US 622 ). Here, defendant's shackling during trial was harmless, as was an evidentiary error committed by the trial court. We also agree with the People that the count of defendant's indictment charging him with attempted rape should not have been dismissed.
A female, civilian employee of Auburn Correctional Facility was attacked in the prison on the afternoon of July 7, 2006. She was walking along an otherwise empty corridor, towards the south mess hall kitchen when a man attacked her from behind, putting his hand over her mouth and nose. The employee, managing to get free of her attacker's grasp momentarily, begged him not to hurt her, and asked, "What do you want?" The man did not answer. He slammed the woman against a wall, and thrust a sock or towel into her mouth. After she succeeded in getting the object out of her mouth, and screamed for help, the assailant threatened to kill her if she did not keep quiet, placed the same object into her mouth again, and pushed her onto her knees.
Remaining behind the employee at all times, so that she could not see him, the man pulled her head back by her hair, while continuing to push the sock or towel into her throat. He then pushed her to the floor. When the sock or towel fell out again, the man replaced it, shouted profanities, and punched the employee in the face. The assailant demanded her hands, and started wrapping a cord around one hand. The employee refused to yield her other arm, and bit one of the man's hands, experiencing a sensation that made her think he was wearing gloves. The attacker, straddling the employee as she lay on her stomach, got both her hands behind her back.
It was at this point that another civilian employee of the prison, Anthony Rebich, who had heard his co-worker's cries, came to her rescue. He saw his colleague lying on the floor of the corridor struggling with an inmate who was trying to tie her hands with white strips of cloth. Rebich activated an alarm and yelled at the inmate who started running towards him. Rebich tripped the inmate, and the two men exchanged blows. Rebich chased the inmate along the corridor, but the inmate ran out of the building. Going to the aid of the female employee, Rebich and another colleague found her screaming for help and repeating that the man had tried to rape her.
Corrections Officer John Exner found defendant Raymond Clyde in the yard, in the vicinity of the south mess hall. He was sweating profusely, was acting nervously, and gave an explanation for his presence in the yard that made no sense to the officer. Rebich identified Clyde as the man he had encountered in the corridor. The female employee who had been attacked was unable to identify her assailant.
Clyde's DNA was found on a sock, a towel, and a glove, left behind when the attacker fled the corridor. The DNA samples on the towel and glove came from semen-stained areas of those items. Semen was also found on the female victim's T-shirt, but was insufficient for identification purposes. A tape roll and a strip of cloth left at the crime scene matched a tape roll spindle and a torn bed sheet found in Clyde's single-occupancy cell.
The female employee had numerous facial lacerations, abrasions, and bruises, and a deep oral laceration. She told the nurse who treated her at the prison infirmary that an inmate had tried to rape her. She was treated at Auburn Memorial Hospital, and released. Rebich was treated at the same hospital, and was diagnosed with a concussion.
Clyde was indicted on charges of attempted rape in the first degree, assault in the second degree (two counts), unlawful imprisonment in the first degree, and promoting prison contraband in the first degree. Defense counsel sought an order from County Court directing that Clyde be permitted to appear in court without prison garb, chains or shackles. The People, while not opposing this request, produced a report of Clyde's criminal history, showing that he was serving a prison sentence of 25 to 50 years, following a 1996 conviction for rape in the first degree (two counts), sodomy in the first degree, robbery in the first degree, and burglary in the first degree. The People also pointed to Clyde's earlier convictions and to a history of over 20 disciplinary findings during his present incarceration.
When Clyde's trial began in December 2007, County Court agreed that Clyde could wear non-institutional clothes and need not wear handcuffs, but insisted that he wear leg irons. The trial court offered to have a "curtain" draped around the defense table to conceal the leg irons. After some discussion with Clyde about the practical difficulties of such an arrangement, which would not allow Clyde to attend side-bar conferences without revealing the leg irons, Clyde agreed to forego the curtain. At no point did County Court place on the record its findings showing that Clyde needed restraint by means of leg irons.
Clyde waived his right to counsel. Properly warned of the risks of self-representation, Clyde proceeded pro se throughout jury selection and his trial.*fn1 Clyde did not raise the subject of his shackles again, and sought no cautionary instruction in that regard.
In all, 29 witnesses testified at Clyde's trial, including, among others, the female victim, Rebich, Exner, and the forensic scientists who had performed the DNA analysis. Sergeant Craig Diego testified that on the day before the attack, and twice on the morning of the attack, he had seen Clyde in a prison alleyway that he was not authorized to remain in, which was frequented by "teachers . . . go[ing] down to the [prison] ...