               SUPREME COURT OF THE STATE OF NEW YORK
                  Appellate Division, Fourth Judicial Department

658
KA 10-01241
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                     MEMORANDUM AND ORDER

JESSIE J. BARNES, DEFENDANT-APPELLANT.


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (JOHN E. TYO OF COUNSEL),
FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JEFFREY L. TAYLOR
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Frederick G.
Reed, A.J.), rendered May 26, 2010. The judgment convicted defendant,
upon a jury verdict, of burglary in the second degree (two counts),
grand larceny in the third degree (two counts), grand larceny in the
fourth degree (two counts) and criminal mischief in the third degree
(two counts).

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law and a new trial is granted.

     Memorandum: Defendant appeals from a judgment convicting him
following a jury trial of two counts each of burglary in the second
degree (Penal Law § 140.25 [2]), grand larceny in the third degree (§
155.35 [1]), grand larceny in the fourth degree (§ 155.30 [7]), and
criminal mischief in the third degree (§ 145.05 [2]). The convictions
arise from two residential burglaries committed by defendant in the
Town of Victor on the same day. We agree with defendant that County
Court erred in ordering him to wear a stun belt and then shackles at
trial without first making “findings on the record” concerning the
necessity for such restraints (People v Buchanan, 13 NY3d 1, 4; see
People v Cruz, 17 NY3d 941, 944-945; see generally Deck v Missouri,
544 US 622, 624). Although the court set forth a reasonable
explanation for its use of restraints in response to a post-trial
motion by defendant challenging, inter alia, the propriety of the use
of the restraints, the court’s post hoc explanation does not suffice
inasmuch as the court was required to have considered the relevant
factors and made a sufficient inquiry “before” making a finding that
restraints were necessary (Buchanan, 13 NY3d at 4 [emphasis added]).

     We reject the People’s contention that reversal is not required
because the error is harmless. Even assuming, arguendo, that the
error is harmless with respect to the use of the shackles (see People
v Clyde, 18 NY3d 145, 153-154), we note that the Court of Appeals did
                                 -2-                           658
                                                         KA 10-01241

not apply harmless error analysis in Buchanan to the improper use of a
stun belt, and Cruz (17 NY3d at 945 n) makes clear that the improper
use of a stun belt is not subject to harmless error analysis.

     We reject defendant’s further contentions that the court erred in
denying his pretrial motion to dismiss the indictment based on the
prosecutor’s allegedly improper impeachment of him before the grand
jury regarding his criminal record (see People v Burton, 191 AD2d 451,
lv denied 81 NY2d 1011), and that the court erred in denying his
motion for a trial order of dismissal based on legally insufficient
evidence (see generally People v Bleakley, 69 NY2d 490, 495). We need
not address defendant’s remaining contentions in light of our decision
to grant defendant a new trial.




Entered:   June 15, 2012                       Frances E. Cafarell
                                               Clerk of the Court
