People v. Mixon

120 A.D.2d 861, 502 N.Y.S.2d 299, 1986 N.Y. App. Div. LEXIS 56965

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 22, 1986
• Status: Published

Opinion

— Mikoll, J.

Appeal from a judgment of the County Court of Chemung County (Monroe, J.), rendered April 13, 1984, upon a verdict convicting defendant of the crime of promoting prison contraband in the first degree.

Defendant was found guilty of promoting prison contraband in the first degree as a result of his possession of a sharpened metal "shank” on November 23, 1983 while an inmate at Elmira Correctional Facility. Before trial commenced, defendant objected to County Court’s ruling that defendant would be handcuffed and shackled throughout the trial. Defendant raises several issues on this appeal; however, we need direct our attention to but one which is dispositive of the matter.

While the record reveals that the defendant excepted to County Court’s ruling ordering that he be tried in restraints, the record contains no statement by the court giving any reasons for the order. In addition, the court failed to instruct the jury with regard to its consideration of the restraints. Defendant contends that this constituted a denial of his right to a fair trial. We concur (see, People v Hart, 112 AD2d 471). Contrary to the argument advanced by the People, defendant’s failure to request such a charge is not fatal. Further, we do not find persuasive the People’s argument that the error was not prejudicial to defendant. The use of restraints should be avoided whenever possible and, in any event, the reason for their use should be articulated on the record with appropriate instructions given to the jury.

Judgment reversed, on the law, and matter remitted to the County Court of Chemung County for a new trial. Main, J. P., Weiss, Mikoll and Yesawich, Jr., JJ., concur.