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

369
KA 14-00473
PRESENT: CENTRA, J.P., CARNI, DEJOSEPH, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JESSE J. BARNES, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


LEANNE LAPP, PUBLIC DEFENDER, CANANDAIGUA (MARY P. DAVISON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA, FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Frederick G.
Reed, A.J.), rendered February 14, 2014. 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 said appeal from the judgment insofar
as it imposed sentence is unanimously dismissed and the judgment is
modified on the law by reducing the conviction of grand larceny in the
third degree under count two of the indictment to petit larceny, and
striking the language “and family” from the orders of protection, and
as modified the judgment is affirmed.

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him following retrial upon a jury verdict of, inter alia,
two counts of burglary in the second degree (Penal Law § 140.25 [2]),
two counts of grand larceny in the third degree (§ 155.35 [1]), and
two counts of criminal mischief in the third degree (§ 145.05 [2])
and, in appeal No. 2, he appeals from the resentence imposed on that
conviction.

     We reject defendant’s contention that County Court committed an
O’Rama violation that constituted a mode of proceedings error (see
People v O’Rama, 78 NY2d 276-278; see generally CPL 310.30). It is
well settled that “not all O’Rama violations constitute mode of
proceedings errors . . . The only errors that require reversal in the
absence of preservation are those that go to the trial court’s ‘core
responsibilities’ under CPL 310.30, such as giving notice to defense
counsel and the prosecutor of the contents of a jury note” (People v
Kahley, 105 AD3d 1322, 1323). Here, we conclude that there was no
O’Rama violation inasmuch as it is undisputed that the court provided
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                                                         KA 14-00473

the jury note to counsel without the jury present, and counsel was
able to respond before the jury was in the courtroom. Likewise, it
was not a mode of proceedings error to fail to fully respond to the
jury’s note seeking testimony about surveillance prior to taking the
verdict, inasmuch as the jury could have resolved that factual issue
on its own without further input from the court (see People v
Albanese, 45 AD3d 691, 692, lv denied 10 NY3d 761; People v Sanders,
227 AD2d 506, 506, lv denied 88 NY2d 994).

     We reject defendant’s further contention that the indictment
should be dismissed because he was required to wear restraints and
prison clothes when he testified before the grand jury. We conclude
that the prosecutor’s cautionary instruction to the grand jurors,
which admonished them from drawing any negative inferences from the
fact that defendant was in custody, was “sufficient to dispel any
potential prejudice to defendant” (People v Cotton, 120 AD3d 1564,
1565, lv denied ___ NY3d ___ [Mar. 2, 2016] [internal quotation marks
omitted]; see People v Burroughs, 108 AD3d 1103, 1106, lv denied 22
NY3d 995; People v Muniz, 93 AD3d 871, 872, lv denied 19 NY3d 965,
reconsideration denied 19 NY3d 1028).

     Contrary to defendant’s assertion, the court did not abuse its
discretion when it required that he be restrained by a stun belt
during trial. “[A] stun belt may not be required unless the trial
court makes findings on the record showing that the particular
defendant before him needs such a restraint. A formal hearing may not
be necessary, but the trial court must conduct a sufficient inquiry to
satisfy itself of the facts that warrant the restraint. Where it does
so, a trial court has broad discretion in deciding whether a restraint
is necessary for courtroom security” (People v Buchanan, 13 NY3d 1,
4). On this record, we conclude that the court conducted a sufficient
inquiry to satisfy itself of facts warranting use of the restraint.

     Defendant’s claim that the search warrant was issued without
probable cause also is without merit. “Probable cause does not
require proof sufficient to warrant a conviction beyond a reasonable
doubt but merely information sufficient to support a reasonable belief
that an offense has been or is being committed or that evidence of a
crime may be found in a certain place” (People v Bigelow, 66 NY2d 417,
423-424, citing People v McRay, 51 NY2d 594, 602). Further,
“[p]robable cause may be supplied, in whole or part, through hearsay
information . . . , [and] an informant’s basis of knowledge may be
verified by police investigation that corroborates the defendant’s
actions or that develops information consistent with detailed
predictions by the informant” (id. at 423-424). Here, the record
reflects that the information received through an informant connecting
defendant to the searched premises was independently corroborated by
the investigator and was sufficient to support a reasonable belief
that evidence of a crime could be found at the premises. The court
also properly denied defendant’s motion for a Franks/Alfinito hearing
(see Franks v Delaware, 438 US 154; People v Alfinito, 16 NY2d 181)
because defendant failed to make “ ‘a substantial preliminary showing
that a false statement knowingly and intentionally, or with reckless
disregard of the truth, was included by the affiant in the warrant
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                                                         KA 14-00473

affidavit, and . . . [that such] statement [was] necessary to the
finding of probable cause’ ” (People v Binion, 100 AD3d 1514,
1514-1515, lv denied 21 NY3d 911).

     Defendant contends that he was deprived of a fair trial by
various instances of alleged prosecutorial misconduct. Defendant
failed to object to most of those instances, however, and thus failed
to preserve his contention for our review with respect to them (see
People v Torres, 125 AD3d 1481, 1484, lv denied 25 NY3d 1172). In any
event, we conclude that the alleged instances of misconduct, both
preserved and unpreserved, “ ‘were not so pervasive or egregious as to
deprive defendant of a fair trial’ ” (id.; see People v Weaver, 118
AD3d 1270, 1270, lv denied 24 NY3d 965; cf. People Griffin, 125 AD3d
1509, 1511-1512).

     We agree with defendant, however, that the evidence is not
legally sufficient to support the conviction with respect to grand
larceny in the third degree under count two of the indictment because
there is insufficient evidence that the value of the property stolen
was $3,000 or more (see Penal Law § 155.35 [1]; see also People v
Morgan, 111 AD3d 1254, 1257; People v Geroyianis, 96 AD3d 1641,
1644-1645, lv denied 19 NY3d 996, reconsideration denied 19 NY3d
1102). Nevertheless, the evidence is legally sufficient to establish
that defendant committed the lesser included offense of petit larceny
(§ 155.25), and we therefore modify the judgment accordingly and
modify the resentence by vacating the resentence imposed under count
two of the indictment, and we remit the matter to County Court for
sentencing on that count (see Geroyianis, 96 AD3d at 1645).

     Contrary to defendant’s assertion, the evidence is legally
sufficient to support the conviction with respect to criminal mischief
in the third degree under count five of the indictment inasmuch as
replacement cost is a legally sufficient basis to establish the
requisite value of the property (see Penal Law § 155.20 [1]).

     Finally, defendant contends, and the People concede, that the
orders of protection are overly broad and should be modified. We
agree, and we therefore modify the judgment by removing from the
orders of protection the words “and family.”




Entered:   May 6, 2016                          Frances E. Cafarell
                                                Clerk of the Court
