This memorandum is uncorrected and subject to revision before publication in the New York Reports.
The order of the Appellate Division should be reversed and a new trial ordered.
Naomi Edwards encountered an intruder in the kitchen of her home in Brentwood, Suffolk County, on the afternoon of January 3, 2007. The man appeared to her to be "Puerto Rican or light skinned African American." He pulled a baseball cap down over his face and ran out of her house.
Edwards's neighbor, Raquel Oliveria, had seen a man on a light blue ten-speed bicycle riding slowly back and forth on the street, before entering Edwards's driveway. He was wearing a black shirt, blue jeans, and a black hat. The man parked his bicycle in the driveway, and looked around. He attempted to open two windows at Edwards's house. Oliveria lost sight of the man when he walked to the side of Edwards's house where the kitchen door was located. A few minutes later, Oliveria saw the man as he fled the house. He retrieved his bicycle and pedaled away.
Edwards and Oliveria called 911. Police Officer Charles Ross was dispatched to look for a Hispanic male, riding a blue bicycle, and possibly wearing a black shirt and black hat. Within about three minutes, Ross saw a man fitting that description, on a blue, ten-speed bicycle, at an intersection about a quarter of a mile from Edwards's house. The man, defendant Geraldo Cruz, said he was on his way to a friend's house.
Subsequently, Police Officer Sean Petersen interviewed Edwards and Oliveria. Officer Petersen asked Oliveria to accompany him to view the suspect. At the "show-up," Oliveria identified Cruz as the man she had seen trying to break in to her neighbor's house. However, she did so, not by recognizing his face, but on the basis of the clothes he was wearing and the bicycle he was riding.
Cruz was arrested and held in prison on a parole violation. While incarcerated, he wrote three letters to Edwards, "asking her to please come to court" to identify him. Cruz was charged with burglary in the second degree and, on the basis of the letters, three counts of tampering with a witness in the fourth degree. The witness tampering charges were later dismissed pursuant to the People's application.
County Court held Wade and Sandoval hearings. At the latter, it emerged that Cruz had four felony and four misdemeanor convictions. The record contains no evidence that Cruz behaved disruptively during the hearings.
Jury selection began in County Court on February 14, 2008. At voir dire, defense counsel, finding Cruz in "leg shackles," asked for the basis for restraining his client. County Court gave no immediate explanation, but noted that a curtain of opaque bunting had been placed around the defense table to conceal the restraints. The jury, County Court opined, would "never know anything about the shackles." Defense counsel strenuously objected, arguing that the jury would infer from the presence of the curtain around the defense table but not the prosecution table that Cruz was shackled.
Subsequently, County Court made the following remarks, regarding Cruz's shackles.
"[Cruz] is no stranger to the criminal justice system. He has been a threat before to society. Also, my concern is that it's been explained to him should he not prevail on this matter he's looking at a long, long time. . . . His motive to destroy the trial or to take vengeance upon anybody who testifies or just to disrupt the proceedings, based upon  the potential for what he's looking at might be an incentive."
County Court also stated that the incidence of "problems" in courtrooms had "risen dramatically over the last few years." Finally, the judge mentioned that Cruz was not being "singled out," adding that shackling had been his "policy . . . with numerous cases."
The next day, County Court added the following statement about the shackling. "[S]o the record is clear, . . . the shackling . . . was not my independent determination. It was recommended to me by the security staff." County Court then denied defense counsel's request for a hearing on the matter.
During his trial, Cruz was made to wear shackles on his ankles. Bunting was draped around the defense table, but not the prosecution table. The restraints were removed before Cruz was escorted ...