PEOPLE v. ALLAWAY (2004)

Appeal from a judgment of the County Court of Greene County (Czajka, J.), rendered June 27, 1997, upon a verdict convicting defendant of the crime of attempted escape in the first degree.

Defendant, an inmate at Greene Correctional Facility in Greene County, was convicted of attempted escape in the first degree following a jury trial.   He was sentenced as a second felony offender to a prison term of 2 to 4 years.   Defendant now appeals, claiming that County Court committed reversible error when it required him to appear before the jury in shackles throughout the trial.

 We affirm.   It is well settled that “a defendant may not be physically restrained before the jury unless there is a reasonable basis, articulated on the record, for doing so” (People v. Rouse, 79 N.Y.2d 934, 935, 582 N.Y.S.2d 986, 591 N.E.2d 1172 [1992] ).   A defendant may be restrained, however, when necessary for reasons of security or to prevent escape of the accused (see People v. Stokes, 290 A.D.2d 71, 74, 736 N.Y.S.2d 781 [2002], lv. denied 97 N.Y.2d 762, 742 N.Y.S.2d 623, 769 N.E.2d 369 [2002], cert. denied 537 U.S. 859, 123 S.Ct. 230, 154 L.Ed.2d 97 [2002];  People v. Greiner, 156 A.D.2d 813, 817, 549 N.Y.S.2d 831 [1989], lv. denied 75 N.Y.2d 919, 555 N.Y.S.2d 38, 554 N.E.2d 75 [1990] ).   Here, prior to jury selection, defendant requested that his arm and leg shackles be removed.   County Court denied his request based on security concerns, the nature of the crime charged and defendant's violent criminal history, including a prior conviction for murder that occurred while he was under the supervision of the Department of Correctional Services for a separate felony (see People v. Stokes, supra at 74, 736 N.Y.S.2d 781;  People v. Freeman, 184 A.D.2d 864, 865, 585 N.Y.S.2d 113 [1992], lv. denied 80 N.Y.2d 903, 588 N.Y.S.2d 829, 602 N.E.2d 237 [1992] ).   County Court minimized the possibility of prejudice by instructing the jury, during its preliminary instructions and before jury deliberations, to disregard the restraints (see People v. Rouse, supra at 935, 582 N.Y.S.2d 986, 591 N.E.2d 1172;  People v. Gourdine, 188 A.D.2d 741, 741, 591 N.Y.S.2d 537 [1992], lv. denied 81 N.Y.2d 886, 597 N.Y.S.2d 947, 613 N.E.2d 979 [1993] ).   Accordingly, we cannot say that the court committed reversible error in denying defendant's request that the shackles be removed.

ORDERED that the judgment is affirmed.

MERCURE, J.P.

SPAIN, MUGGLIN and LAHTINEN, JJ., concur.