PEOPLE v. BENITO (1998)

Judgment, Supreme Court, New York County (Leslie Crocker Snyder, J.), rendered July 26, 1995, convicting defendant, after a jury trial, of robbery in the first degree, burglary in the first degree, intimidating a victim or witness in the third degree, and unlawful imprisonment in the first degree (two counts), and sentencing him, as a persistent violent felony offender, to concurrent terms of 25 years to life on the robbery and burglary convictions, and 2 to 4 years on the remaining convictions, unanimously affirmed.

 A review of the record indicates that the circumstances presented to the court permitted the court's discretionary use of shackles to restrain defendant and maintain order in the proceedings (People v. Mendola, 2 N.Y.2d 270, 276-277, 159 N.Y.S.2d 473, 140 N.E.2d 353).   The court was not required to accept defendant's promise of good behavior where such promises had proved unreliable before (see, People v. Harding, 243 A.D.2d 401, 664 N.Y.S.2d 554, lv. denied 91 N.Y.2d 874, 668 N.Y.S.2d 572, 691 N.E.2d 644).   Additionally, the record indicates that the shackles were hardly noticeable, that the jury had witnessed defendant's misconduct in the courtroom, and that the court issued appropriate instructions to the jury to minimize any potential prejudice to defendant.   In the circumstances, there is no support for defendant's claim of undue prejudice (see, People v. Palermo, 32 N.Y.2d 222, 226, 344 N.Y.S.2d 874, 298 N.E.2d 61;  see also, People v. Bailey, 205 A.D.2d 789, 613 N.Y.S.2d 692, lv. denied 84 N.Y.2d 822, 617 N.Y.S.2d 142, 641 N.E.2d 163).

 Defendant's claim of prejudice due to late delivery of Rosario material is unsupported by the record and the court properly denied defendant's request for a mistrial.   In this connection, the record establishes that late delivery of any Rosario material was not due to bad faith on the part of the prosecutor, and that the court eliminated any possible prejudice to defendant by precluding the People from taking advantage of the material and by offering defense counsel the opportunity to recall any relevant witness for further questioning with the benefit of the material in question (see, People v. Leidinger, 196 A.D.2d 688, 601 N.Y.S.2d 301, lv. denied 82 N.Y.2d 851, 606 N.Y.S.2d 602, 627 N.E.2d 524).

MEMORANDUM DECISION.