

People v Leitzsey (2016 NY Slip Op 06251)





People v Leitzsey


2016 NY Slip Op 06251


Decided on September 29, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on September 29, 2016

Mazzarelli, J.P., Acosta, Saxe, Moskowitz, Gesmer, JJ.


1757 1921/08

[*1]The People of the State of New York, Respondent,
vEldred Leitzsey, Defendant-Appellant.


Seymour W. James, Jr., The Legal Aid Society, New York (Mitchell J. Briskey of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sabrina Margret Bierer of counsel), for respondent.

Judgment, Supreme Court, New York County (Renee A. White, J.), rendered February 17, 2009, convicting defendant, following a jury trial, of four counts of aggravated harassment of an employee by an inmate, and sentencing him, as a second felony offender, to three consecutive terms and one concurrent term of 2½ to 5 years, unanimously affirmed.
The court properly exercised its discretion in ordering that defendant be kept in physical restraints during the trial. Defendant's constitutional claim to the contrary is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. Although the use of restraints that are visible to the jury requires that a
particularized justification be placed on the record (People v Clyde, 18 NY3d 145, 152 [2011]; People v Cruz, 17 NY3d 941, 944-945, 945 n [2011]), here the court's initial order required that the restraints be concealed from the jury by means of draping material, and that the prosecutor's table be similarly draped in order to prevent the jury from drawing any inferences. It was only at defendant's insistence that the restraints were revealed to the jury (see People v Martinez, 284 AD2d 157 [1st Dept 2001]). In any event, the court set forth an adequate, case-specific justification, based on security concerns that included defendant's criminal history, his conduct while incarcerated and the nature of the crimes charged, which involved attacks on correction officers.
The court properly imposed consecutive sentences on three of defendant's convictions, because the evidence showed that, in three separate throws, he threw a mixture of feces and urine [*2]at correction officers. Although part of a single transaction, the three offenses were separate acts committed in violation of Penal Law § 240.32 (see People v Rodriguez, 25 NY3d 238, 244 [2015]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: SEPTEMBER 29, 2016
CLERK


