People v. Clyde

Appeal from a judgment of the Cayuga County Court (Robert B. Wiggins, J.), rendered March 24, 2008. The judgment convicted defendant, upon a jury verdict, of assault in the second degree (two counts), unlawful imprisonment in the first degree and promoting prison contraband in the first degree.

It is hereby ordered that the judgment so appealed from is reversed on the law and a new trial is granted on counts two through five of the indictment.

Memorandum: In appeal No. 1, defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, two counts of assault in the second degree (Penal Law § 120.05 [7]). We agree with defendant that County Court erred in failing to articulate a reasonable basis on the record for its determination to restrain defendant in shackles during the trial. “The shackling of a defendant in the presence of the jury is inherently prejudicial and constitutes reversible error unless a reasonable basis therefor is in the record or it is clear that the jury was not prejudiced thereby” (People v Vigliotti, 203 AD2d 898, 898 [1994]; see generally People v Rouse, 79 NY2d 934, 935 [1992]; People v Mendola, 2 NY2d 270 [1957]). Inasmuch as the record establishes that the shackles were visible to the jury (cf. People v Tascarella, 227 AD2d 888, 888-889 [1996], lv denied 89 NY2d 867 [1996]), we cannot agree with the conclusion of the dissent that the jury was not prejudiced thereby and thus that the error is harmless (cf. People v Sykes, 224 AD2d 986 [1996]; Vigliotti, 203 AD2d at 898). To the contrary, “where a court, without adequate justification [articulated on the record], orders the defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation” (Deck v Missouri, 544 US 622, 635 [2005]). In view of our determination of defendant’s contention, we need not consider the remaining contentions in appeal No. 1 raised by defendant in his main brief and pro se supplemental brief. In the interest of judicial economy, however, we note that we also agree with defendant that the court abused its discretion in refusing to preclude the prosecutor from questioning medical experts on the issue whether the victim’s injuries met the legal definitions of physical injury and serious physical injury set forth in the Penal Law (see People v Forcione, 156 AD2d 952 [1989], lv denied 75 NY2d 919 [1990]). “[T]he ultimate determination whether those injuries satisfied the statutory definition[s] was not beyond the ken of the typical juror” (id. at 952).

In appeal No. 2, the People appeal from an order insofar as it granted that part of defendant’s motion for a trial order of dismissal pursuant to CPL 290.10 (1) with respect to count one of the indictment, charging attempted rape in the first degree (Penal Law §§ 110.00, 130.35 [1]). We conclude that the court properly granted that part of defendant’s motion inasmuch as the requisite evidence of defendant’s intent to rape the victim by the use of forcible compulsion, a necessary element of the crime charged, was legally insufficient (cf. People v Lamagna, 30 AD3d 1052, 1053 [2006], lv denied 7 NY3d 814 [2006]; see generally People v Bleakley, 69 NY2d 490, 495 [1987]).

All concur except Scudder, P.J., who dissents and votes to affirm in the following memorandum.