Appeal from a judgment of the Ontario County Court (Frederick G. Reed, A.J.), rendered May 26, 2010.
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND MARTOCHE, JJ.
The judgment convicted defendant, upon a jury verdict, of burglary in the second degree (two counts), grand larceny in the third degree (two counts), grand larceny in the fourth degree (two counts) and criminal mischief in the third degree (two counts).
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of two counts each of burglary in the second degree (Penal Law § 140.25 ), grand larceny in the third degree (§ 155.35 ), grand larceny in the fourth degree (§ 155.30 ), and criminal mischief in the third degree (§ 145.05 ). The convictions arise from two residential burglaries committed by defendant in the Town of Victor on the same day. We agree with defendant that County Court erred in ordering him to wear a stun belt and then shackles at trial without first making "findings on the record" concerning the necessity for such restraints (People v Buchanan, 13 NY3d 1, 4; see People v Cruz, 17 NY3d 941, 944-945; see generally Deck v Missouri, 544 US 622, 624). Although the court set forth a reasonable explanation for its use of restraints in response to a post-trial motion by defendant challenging, inter alia, the propriety of the use of the restraints, the court's post hoc explanation does not suffice inasmuch as the court was required to have considered the relevant factors and made a sufficient inquiry "before" making a finding that restraints were necessary (Buchanan, 13 NY3d at 4 [emphasis added]).
We reject the People's contention that reversal is not required because the error is harmless. Even assuming, arguendo, that the error is harmless with respect to the use of the shackles (see People v Clyde, 18 NY3d 145, 153-154), we note that the Court of Appeals did not apply harmless error analysis in Buchanan to the improper use of a stun belt, and Cruz (17 NY3d at 945 n) makes clear that the improper use of a stun belt is not subject to harmless error analysis.
We reject defendant's further contentions that the court erred in denying his pretrial motion to dismiss the indictment based on the prosecutor's allegedly improper impeachment of him before the grand jury regarding his criminal record (see People v Burton, 191 AD2d 451, lv denied 81 NY2d 1011), and that the court erred in denying his motion for a trial order of dismissal based on legally insufficient evidence (see generally People v Bleakley, 69 NY2d 490, 495). We need not address defendant's remaining contentions in light of our decision to grant defendant a new trial.
Frances E. Cafarell Clerk of ...