PEOPLE v. MOSHER (2024)

MEMORANDUM AND ORDER

Appeal from a judgment of the County Court of Tompkins County (John C. Rowley, J.), rendered July 9, 2021, upon a verdict convicting defendant of the crime of menacing in the second degree (two counts).

Defendant, who had just been escorted out of a hospital emergency department for displaying aggressive behavior toward staff members, attempted to leave the premises in one of the hospital's wheelchairs.  When security guards prevented him from doing so and instructed him that he could not smoke on hospital property, an altercation ensued, during which defendant pointed a knife at the security guards and threatened to stab them.  As a result of this incident, defendant was charged by indictment with criminal possession of a weapon in the third degree and two counts of menacing in the second degree.  Following a jury trial, defendant was found guilty as charged.  After defendant successfully moved to set aside the verdict with respect to his criminal possession of a weapon conviction (see CPL 330.30), County Court sentenced defendant to consecutive terms of incarceration.  Defendant appeals.  We affirm.

As to menacing in the second degree, defendant argues that the verdict is against the weight of the evidence because the evidence did not show that he intentionally placed or attempted to place another person in reasonable fear of physical injury, serious injury or death.¹  We disagree.  Testimony from the security guards and a paramedic, along with video evidence, established the essential elements of the crime charged (see Penal Law § 120.14[1]).  Further, both guards testified that, when defendant brandished the knife at them, they feared for their own safety as well as the safety of others.  Because there were inconsistencies in the witnesses’ accounts of the incident, an acquittal would not have been unreasonable (see People v. Miller, 160 A.D.3d 1040, 1043, 75 N.Y.S.3d 112 [3d Dept. 2018], lv denied 32 N.Y.3d 939, 84 N.Y.S.3d 866, 109 N.E.3d 1166 [2018]).  Nevertheless, those inconsistencies presented a credibility determination for the jury to resolve (see People v. Weiss, 99 A.D.3d 1035, 1038, 952 N.Y.S.2d 637 [3d Dept. 2012], lv denied 20 N.Y.3d 1015, 960 N.Y.S.2d 358, 984 N.E.2d 333 [2013]).  Deferring to their resolution and viewing the evidence in a neutral light, the verdict is not against the weight of the evidence (see People v. Ward, 141 A.D.3d 853, 857–858, 35 N.Y.S.3d 557 [3d Dept. 2016];  People v. Beverly, 74 A.D.3d 1480, 1481, 904 N.Y.S.2d 518 [3d Dept. 2010], lv denied 15 N.Y.3d 802, 908 N.Y.S.2d 161, 934 N.E.2d 895 [2010];  People v. Hargett, 11 A.D.3d 812, 814, 784 N.Y.S.2d 197 [3d Dept. 2004], lv denied 4 N.Y.3d 744, 790 N.Y.S.2d 657, 824 N.E.2d 58 [2004]).

Next, County Court's order directing defendant to wear leg shackles during trial was erroneous.  “It is well settled that a defendant has a right to be free of visible restraints during criminal proceedings unless the trial court states a case-specific reason for their use” (People v. Banch, 198 A.D.3d 1186, 1189, 155 N.Y.S.3d 635 [3d Dept. 2021] [internal quotation marks and citations omitted], lv denied 37 N.Y.3d 1144, 159 N.Y.S.3d 347, 180 N.E.3d 511 [2021]).  The court explained that it adopted the practice of shackling defendants about the ankles in cases where it “consider[ed] the charges to be serious or the circumstances to be fluid,” and that the practice “[was] not particular to” defendant.  Routine shackling of defendants as a matter of policy, however, runs afoul of due process (see People v. Sanders, 39 N.Y.3d 216, 220, 184 N.Y.S.3d 703, 205 N.E.3d 423 [2023];  see generally Deck v. Missouri, 544 U.S. 622, 627–632, 125 S.Ct. 2007, 161 L.Ed.2d 953 [2005]).²  The court went on to state that defendant was in custody, that “he struggle[d] with control of his emotions on occasion” and that his release status had been revoked twice prior to trial.  Still, these explanations did not suffice to justify the use of leg shackles throughout the trial (see People v. Banch, 198 A.D.3d at 1189, 155 N.Y.S.3d 635;  compare People v. Jenner, 39 A.D.3d 1083, 1087–1088, 835 N.Y.S.2d 501 [3d Dept. 2007], lv denied 9 N.Y.3d 845, 840 N.Y.S.2d 772, 872 N.E.2d 885 [2007]).  Further, even though the court noted that black bunting had been installed around the tables where defendant and the prosecutor sat to block the jury's view, we cannot conclude on the record before us that the jury was not aware or could not infer that defendant had been shackled (see People v. Cruz, 17 N.Y.3d 941, 944, 936 N.Y.S.2d 661, 960 N.E.2d 430 [2011];  compare People v. Alexander, 127 A.D.3d 1429, 1432, 8 N.Y.S.3d 674 [3d Dept. 2015], lv denied 25 N.Y.3d 1197, 16 N.Y.S.3d 520, 37 N.E.3d 1163 [2015]).  In light of this possibility, the court should have issued curative instructions (see People v. Dawson, 125 A.D.2d 860, 861, 510 N.Y.S.2d 459 [3d Dept. 1986], lv denied 69 N.Y.2d 879, 515 N.Y.S.2d 1026, 507 N.E.2d 1096 [1987]).  Nevertheless, because the evidence of defendant's guilt was overwhelming and there is no reasonable possibility that defendant's unjustified shackling affected the outcome of the trial, this constitutional error was harmless (see People v. Best, 19 N.Y.3d 739, 744, 955 N.Y.S.2d 860, 979 N.E.2d 1187 [2012];  People v. Clyde, 18 N.Y.3d 145, 153–155, 938 N.Y.S.2d 243, 961 N.E.2d 634 [2011], cert denied 566 U.S. 944, 132 S.Ct. 1921, 182 L.Ed.2d 784 [2012]).

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   Defendant's legal sufficiency contention is not preserved because the ground raised on appeal was not raised in his trial motion to dismiss (see People v. Franklin, 216 A.D.3d 1304, 1305, 190 N.Y.S.3d 471 [3d Dept. 2023], lv denied 40 N.Y.3d 934, 194 N.Y.S.3d 750, 215 N.E.3d 1191 [2023]).

2.   Indeed, County Court has previously been faulted by this Court for proffering the same nonspecific justification for the use of leg shackles – i.e., requiring leg shackles for any criminal defendant in custody (see People v. Arce, 150 A.D.3d 1403, 1406, 55 N.Y.S.3d 465 [3d Dept. 2017], lv denied 29 N.Y.3d 1090, 63 N.Y.S.3d 6, 85 N.E.3d 101 [2017]).

Aarons, J.

Garry, P.J., Lynch, Fisher and Mackey, JJ., concur.