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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 45
The People &c.,
            Respondent,
        v.
Joel Nelson,
            Appellant.




             Alexis A. Ascher, for appellant.
             Morgan J. Dennehy, for respondent.




FAHEY, J.:
             Criminal trials naturally provoke an excess of emotion.
This may lead to potential disruption by spectators at trial.
Nonetheless, it is the obligation of trial courts to protect a
defendant's right to a fair trial, and to ensure that conduct by
spectators does not impair that right.    On this appeal, we

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conclude that although the trial court should have taken action
when defense counsel objected to T-shirts worn by certain
spectators that bore a photograph of the deceased victim,
defendant was not deprived of a fair trial.
                                  I.
             Defendant's conviction stems from the shooting of two
roommates, Mark Maldonado and Leo Walton, in their Brooklyn
apartment.    Maldonado testified at trial that defendant was angry
with him because after defendant and Maldonado had been arrested
together for shoplifting, Maldonado was released on bail, but
defendant remained in jail for several months.    Maldonado
attempted to explain to defendant that he had tried to secure
defendant's release, but defendant was skeptical.
             On March 20, 2008, defendant asked Maldonado if he
could stay the night at Maldonado's apartment, and Maldonado
agreed.   When they arrived at the apartment, Maldonado's
roommate, Walton, was at home.    Maldonado made defendant a drink
and left defendant in the living room of the apartment with
Walton.   Maldonado went into the bedroom with his girlfriend and
locked the bedroom door.    After approximately 15 minutes,
Maldonado heard three gunshots in the living room.    Maldonado
told his girlfriend to seek cover next to the bed.    Defendant
then kicked in the bedroom door and shot Maldonado once in the
head.   Maldonado attempted to seek shelter behind a closet door,
but defendant shot him three more times, striking him in his


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chest and legs.   Defendant then fled the apartment.
          Walton had been shot three times in the back of the
head and died from his injuries.   Maldonado survived after
receiving medical treatment.   The People's proffered motive at
trial was that defendant shot Maldonado over his anger at being
left in jail and killed Walton to eliminate a witness.
          Defendant was apprehended two days later, and he gave
oral, written, and videotaped statements to police.    In those
statements, he claimed that he had heard rumors that Maldonado
believed him to be a "snitch" and wanted to kill him.    When
defendant confronted Maldonado about the rumors, Maldonado
assured him that they were not true and invited defendant back to
his apartment.    Defendant stated that once they arrived there,
Maldonado fired multiple shots at defendant with a .22 caliber
handgun, but defendant ducked, and the shots hit Walton instead.
According to defendant, he then got up from the floor, pulled
from his waistband the .380 caliber handgun he was carrying, and
followed Maldonado into the bedroom, where he fired at Maldonado
four times.
          At trial, defendant raised a justification defense.
The People presented evidence at trial, however, that was
inconsistent with that defense.    According to that evidence, the
bullets recovered from the bodies of Walton and Maldonado, as
well as the bullets found at the scene, were all fired from a .22
caliber handgun and could not have been fired from a .380 caliber


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weapon.    All seven shell casings found at the scene were also
fired from the same .22 caliber handgun.
            On the last day of trial, after defense counsel's
summation, counsel asked for a sidebar and noted that three
members of Walton's family who were observing the trial were
wearing T-shirts bearing Walton's photograph and the phrase
"Remembering Leo Walton."   Counsel asked that the spectators be
required to change their shirts and argued that they were trying
to "inflame" or "influence" the jury.    The prosecutor opposed the
request.
            The court refused to instruct Walton's family members
to remove the shirts.   The court noted that the spectators were
seated quietly and had not drawn attention to themselves or their
shirts.    The court also stated that Walton's family members had
worn the shirts on previous occasions during the trial but that
counsel had not brought the shirts to the court's attention or
requested any relief on those dates.     When counsel protested that
the shirts had not been worn before that day, the court found "as
a matter of fact that one of the females has worn this shirt for
at least three court dates."   The court characterized defense
counsel's application as a "disingenuous" attempt to gain a
strategic advantage before the People's summation.
            The jury found defendant guilty of murder in the second
degree for the death of Walton and assault in the first degree
for the shooting of Maldonado.    Before sentencing, defendant


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moved pursuant to CPL 330.30 to set aside the verdict.   Defendant
argued, among other things, that by wearing the T-shirts,
Walton's family members had attempted to improperly influence the
jury.   The court denied the motion at sentencing, noting that the
family members were seated in the second row of the gallery, that
they had not called attention to themselves in any way, and that
most of the family members were wearing an outer garment on top
of the T-shirt.
           The Appellate Division affirmed, with one Justice
dissenting (125 AD3d 58 [2d Dept 2014]).   The Appellate Division
was troubled by the trial court's failure to alert counsel to the
issue when it first noticed the shirts, and stated that the
"better course would have been to immediately inform Walton's
family members that their conduct could potentially imperil the
legitimacy of the trial, and give them an opportunity to
voluntarily acquiesce to defense counsel's request, thus
obviating the need for explicit direction from the trial court"
(id. at 63).   The court nevertheless declined to create a per se
rule requiring reversal "whenever a spectator brings a depiction
of a deceased victim into a courtroom" because "each particular
instance of challenged conduct calls for a sui generis
determination of its potential effect on the jury, made in light
of the particular circumstances of the case" (id.).   The court
held that, under the particular circumstances of the case, the
trial court's determination "that the spectator conduct did not


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threaten the ability of the jury to remain impartial" was not
error (id. at 64).
          The dissenting Justice agreed "that a per se rule
compelling reversal in every case involving such a display is not
tenable" (id. at 67 [Dickerson, J., dissenting]).    The dissent
disagreed, however, with the conclusion that defendant was not
deprived of his fundamental right to a fair trial under the
circumstances (see id. at 70-71).
          The dissenting Justice granted defendant leave to
appeal to this Court.   We now affirm.
                               II.
          We first address the threshold issue whether
defendant's contention is properly preserved for our review.
Defendant contends that the trial court should have taken action
not only upon defense counsel's objection, but also when the
trial court first noticed the shirts, before counsel objected.
Defendant asserts that this latter part of his contention is
preserved for appellate review pursuant to CPL 470.05 (2), which
provides that a question of law is presented when, "in re[s]ponse
to a protest by a party, the court expressly decide[s] the
question raised on appeal."
          Defendant confuses the trial court's factual
observations with a legal ruling.    Upon defense counsel's
objection to the shirts, the trial court made a factual
observation that at least one member of Walton's family had worn


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the shirt on previous days.   The trial court did not make a legal
ruling that it had no obligation to act on those previous dates,
nor did defendant argue that the trial court was obligated to
take action sua sponte.   Defendant did not, for example, move for
a mistrial on the ground that the wearing of the shirts on
previous days had deprived him of a fair trial.   The language of
CPL 470.05 (2) upon which defendant relies therefore is
inapplicable.
          Trial courts have the inherent authority and the
affirmative obligation to control conduct and decorum in the
courtroom, in order to promote the fair administration of justice
for all (see generally Matter of Katz v Murtagh, 28 NY2d 234,
238-240 [1971]; People v Mendola, 2 NY2d 270, 276 [1957]; People
v Jelke, 308 NY 56, 63 [1954]; 22 NYCRR 100.3 [b] [2]).
Furthermore, "one accused of a crime is entitled to have his
guilt or innocence determined solely on the basis of the evidence
introduced at trial" (Taylor v Kentucky, 436 US 478, 485 [1978]).
It is the duty of the trial court to protect the defendant's
right to a fair trial, and to ensure that spectator conduct does
not impair that right, regardless of whether defense counsel has
noticed or objected to such conduct.   Nevertheless, even where
the trial court has an affirmative obligation to take certain
action in order to protect a fundamental constitutional right, we
have required defendants to preserve any alleged error for
appellate review (see People v Alvarez, 20 NY3d 75, 80-81 [2012],


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                               - 8 -                          No. 45

cert denied 133 S Ct 2004 [2013], and cert denied sub nom. George
v New York, 133 S Ct 1736 [2013]).     Application of the
preservation rule to spectator conduct provides the trial court
with a timely opportunity to correct a problem of which it may
not be aware, and also facilitates appellate review of any
alleged error, inasmuch as spectator conduct often will not
appear on the record.   Here, defense counsel did not move for a
mistrial upon learning that the spectators had worn the shirts on
previous occasions, or otherwise argue that the trial court
should have taken action sua sponte (cf. id. at 79, 81).     This
part of defendant's appellate contention therefore is unpreserved
for our review.   Defendant did partially preserve his contention
for appellate review, however, by objecting to the shirts during
summations and requesting that the trial court take action.    We
therefore review only that part of his contention.
                              III.
          The United States Supreme Court has declined to create
a federal standard for evaluation of spectator conduct claims.
In Carey v Musladin (549 US 70 [2006]), the Supreme Court held
that "the effect on a defendant's fair-trial rights of . . .
spectator conduct . . . is an open question in our jurisprudence"
(id. at 76).   The Court reasoned that the test it had established
in Estelle v Williams (425 US 501 [1976], reh denied 426 US 954
[1976]) and Holbrook v Flynn (475 US 560 [1986]) for the effect
of potentially prejudicial courtroom practices on defendants'


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fair-trial rights -- whether the practice presents an
"unacceptable risk of . . . impermissible factors coming into
play" -- had been applied only to "state-sponsored courtroom
practices" (Musladin, 549 US at 75-76 [internal quotation marks
omitted]).    The Supreme Court observed that it had never applied
the Williams and Flynn framework to spectator conduct (see id. at
76).   In other words, the Supreme Court left resolution of
spectator conduct issues to the state courts.
             As the Supreme Court recognized in Musladin,
"[r]eflecting the lack of guidance from [that] Court, lower
courts have diverged widely in their treatment of defendants'
spectator-conduct claims" (id. at 76).    Some courts have applied
the Williams and Flynn framework to claims that spectator conduct
deprived the defendant of a fair trial (see e.g. United States v
Farmer, 583 F3d 131, 150 [2d Cir 2009], cert denied 559 US 1058
[2010]; Norris v Risley, 918 F2d 828, 830-834 [9th Cir 1990];
Overstreet v State, 877 NE2d 144, 158-159 [Ind 2007], cert denied
555 US 972 [2008]; State v Lord, 161 Wash 2d 276, 289-290, 165
P3d 1251, 1258-1259 [2007]).    Other courts have considered
whether the trial court abused its discretion in responding to
spectator conduct, whether the spectator conduct caused the
defendant to suffer actual prejudice or deprived the defendant of
a fair trial, or some combination of those considerations (see
e.g. Commonwealth v Sanchez, 614 Pa 1, 39-40, 36 A3d 24, 47-48
[2011], cert denied 133 S Ct 122 [2012]; State v Iromuanya, 282


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Neb 798, 827-829, 806 NW2d 404, 432-433 [2011]; Allen v
Commonwealth, 286 SW3d 221, 229-230 [Ky 2009]; Lonergan v State,
281 Ga 637, 640, 641 SE2d 792, 794-795 [2007]; State v Speed, 265
Kan 26, 47-48, 961 P2d 13, 29-30 [1998]; State v Braxton, 344 NC
702, 709-710, 477 SE2d 172, 176-177 [1996]; State v Franklin, 174
W Va 469, 474-475, 327 SE2d 449, 454-455 [1985]).
          Despite these divergent methods, the common thread in
these cases is that courts have refused to apply any per se rule
of reversal to spectator conduct.   They have consistently
declined to hold that any particular category of spectator
conduct is so inherently prejudicial that it necessarily deprives
the defendant of a fair trial.   Even those courts that have
relied upon the Williams/Flynn framework have evaluated the
particular circumstances of each case in determining whether the
spectator conduct was so inherently prejudicial as to deprive the
defendant of a fair trial (see Farmer, 583 F3d at 149-150;
Norris, 918 F2d at 831-832; Overstreet, 877 NE2d at 158-159;
Lord, 161 Wash 2d at 289-291, 165 P3d at 1258-1259).
          Whether the trial court should intervene, and what
intervention is appropriate, must depend upon the facts and
circumstances of each particular case.   The trial court may
consider such factors as: the particular nature of the spectator
conduct at issue; how many spectators are involved; the duration
of the conduct; whether the involved spectators have called
attention to themselves in some way; where the spectators are


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seated in the courtroom; whether the jury can see or did see the
spectator conduct; whether the involved spectators are part of
some recognizable organization or group; whether the spectator
conduct is the result of some intentional effort to influence the
jury or merely an unintended display of emotion; and whether
intervention will correct an ongoing problem or will simply serve
to highlight a brief instance of misconduct for the jury.     This
list is not exhaustive, inasmuch as we do not presume to
anticipate all of the various forms of spectator conduct that may
occur during any given trial.
             If the trial court decides to act, appropriate
intervention may include such actions as a curative instruction
to the jury, ordering the spectators to remove the display,
removal of the offending spectators from the courtroom, or
questioning of the jurors to determine whether they were
influenced by the spectator conduct.     If the trial court
determines, in its discretion, that the spectator conduct was so
prejudicial that no other form of curative action can ensure the
defendant's right to a fair trial, then a mistrial will be
warranted.    The appropriate action will, of course, be informed
by any request from counsel.    In deciding whether to intervene
and what intervention is appropriate, the trial court's paramount
concerns must be the protection of the defendant's fundamental
right to a fair trial and the court's obligation to preserve
order and decorum in the courtroom.


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          Appellate courts evaluating a defendant's contention
that the trial court erred in refusing to intervene in spectator
conduct, or did not intervene appropriately, should review the
trial court's action or inaction for abuse of discretion.   The
trial court is best situated to take all the circumstances into
account and to determine the appropriate intervention (cf. People
v Ming Li, 91 NY2d 913, 917 [1998]; Matter of Plummer v Rothwax,
63 NY2d 243, 250 [1984]).
          One factor that the trial court should not consider,
however, in deciding whether and how to intervene in spectator
conduct, is any First Amendment rights of the spectators
themselves.
          "The court is not a public hall for the
          expression of views, nor is it a political
          arena or a street. It is a place for trial of
          defined issues in accordance with law and
          rules of evidence, with standards of demeanor
          for court, jurors, parties, witnesses and
          counsel. All others are absolutely silent
          nonactors with the right only to use their
          eyes and ears" (Katz v Murtagh, 28 NY2d at
          240).
No court should tolerate a vocal outburst by a spectator on the
ground that the spectator had a First Amendment right to express
his or her views on the proceedings.   The court similarly should
not entertain such concerns when the spectator conduct is non-
verbal (see Musladin, 549 US at 79 [Stevens, J., concurring]).
                              IV.
          We now turn to the specific spectator conduct at issue
in this case: spectator displays of a deceased victim's

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photograph.   We have held that portraits or photographs of a
deceased victim, taken while the victim was alive, are generally
inadmissible at trial unless "relevant to a material fact to be
proved at trial" (People v Stevens, 76 NY2d 833, 835 [1990]).
This is because such photographs may "arouse the jury's emotions"
(id.).
           A similar risk is presented by images of a deceased
victim displayed by spectators in the courtroom, either on their
clothing or by some other method.    Such depictions may be viewed
by the jury as an appeal to sympathy for the deceased victim and
the spectators wearing the display, and perhaps as a request to
hold the defendant responsible for their loss (see Musladin, 549
US at 83 [Souter, J., concurring]; Meghan E. Lind, Hearts on
Their Sleeves: Symbolic Displays of Emotion by Spectators in
Criminal Trials, 98 J Crim L & Criminology 1147, 1153-1154
[2008]).   We therefore conclude that spectator displays of a
deceased victim's portrait or photograph should be prohibited in
the courtroom during trial.   Here, the trial court erred in
failing to instruct the spectators to remove the shirts or cover
them upon defense counsel's objection.
                                V.
           Nevertheless, we agree with the Appellate Division that
a per se rule requiring reversal whenever a spectator displays a
photograph of a deceased victim during trial is untenable (see
Nelson, 125 AD3d at 63; id. at 67-68 [Dickerson, J.,


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dissenting]).   We further decline to apply the Williams and Flynn
framework to hold that such displays are necessarily so
inherently prejudicial that they require reversal and a new trial
in every case (see Musladin, 549 US at 75-76).    That framework,
at least as traditionally applied, suggests that certain
courtroom conduct is so inherently prejudicial that it requires
reversal and a new trial whenever such conduct occurs during
trial (see Williams, 425 US at 504-505).    In other words, that
framework presumes both that there was error and that the error
cannot be harmless because the defendant has been deprived of a
fair trial thereby (see People v Crimmins, 36 NY2d 230, 238
[1975]).
            We conclude, however, that although spectator displays
depicting a deceased victim should be prohibited in the courtroom
during trial, and although the trial court here erred in refusing
to intervene upon defense counsel's request, the error is subject
to harmless error analysis.   Defendant contends that the
deprivation of his right to a fair trial can never be considered
harmless.   We agree only insofar as there can be no harmless
error analysis if an appellate court concludes that spectator
misconduct was so egregious and the trial court's response so
inadequate that the defendant was deprived of a fair trial.
Where "there has been such error of a trial court . . . or such
other wrong as to have operated to deny any individual defendant
his fundamental right to a fair trial, the reviewing court must


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reverse the conviction and grant a new trial," without regard to
whether the proof of guilt was overwhelming or whether "the
errors contributed to the defendant's conviction"(Crimmins, 36
NY2d at 238).    Here, however, the spectator conduct was not so
egregious that defendant was deprived of a fair trial.
             A per se rule of reversal is inappropriate in the
context of spectator displays of a deceased victim's image
because such displays may vary widely.    For example, the display
could range from a small button worn on a spectator's clothing to
a life-size image.    A trial court's refusal to intervene in every
such display upon defense counsel's objection is error.    However,
not every such display requires the drastic remedy of a mistrial,
or an appellate reversal.    The trial court or the appellate
court, respectively, must make that determination based on the
unique circumstances of each case.
             Under the particular circumstances of this case, we
conclude that the trial court's error in failing to instruct the
spectators to remove or cover the shirts upon defense counsel's
objection is harmless.    Consequently, defendant was not deprived
of a fair trial.
             The evidence of defendant's guilt is overwhelming.    In
his statements to the police, defendant admitted that he had shot
Maldonado.    The People presented evidence that defendant did not
shoot Maldonado in self-defense.    Defendant admitted that he
followed Maldonado into the bedroom after Maldonado had


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retreated.    Moreover, the lock on Maldonado's bedroom door was
damaged, consistent with its having been kicked in, and the
bullet holes in and near the closet door corroborated Maldonado's
testimony that he had sought shelter from defendant in the
bedroom closet.    The forensic evidence corroborated Maldonado's
testimony that it was defendant, not Maldonado, who killed
Walton.    The bullets recovered from Walton's body, Maldonado's
body, and the apartment were all fired from a .22 caliber
handgun.   All seven shell casings found at the scene came from a
.22 caliber handgun, and none of the bullets or shell casings
came from a .380 caliber handgun.    Moreover, all the shell
casings originated from the same .22 caliber handgun,
corroborating Maldonado's testimony that only defendant fired a
gun in the apartment.
             Furthermore, there is no significant probability that
the trial court's failure to instruct the spectators to remove or
cover the T-shirts upon defense counsel's request contributed to
the verdict.    The record reflects that only a few members of
Walton's family were wearing the shirts.    The shirt was not
particularly inflammatory, and its inscription -- "Remembering
Leo Walton" -- did not ask the jury to convict defendant or
otherwise convey a message to the jury regarding the spectators'
beliefs about defendant's guilt.    The spectators did not call
attention to themselves or their shirts in any way.    Further, the
trial court found that the spectators were seated in the second


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row of the courtroom and that most of them were wearing an outer
garment over the shirt, such that the jurors would not have been
able to see the shirts in their entirety.
          Accordingly, the order of the Appellate Division should
be affirmed.




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People v Joel Nelson
No. 45




GARCIA, J.(concurring):
          This case calls upon the Court to determine the
standard applicable to conduct by courtroom spectators that may
pose a risk to the defendant's right to a fair trial.   Supreme
Court decisions in this area have left us with a "clean slate"
upon which to write such a rule (see United States v Farmer, 583
F3d 131, 149 [2009], cert denied 559 US 1058 [2010]).
          I concur with the majority that defendant was not
deprived of a fair trial.   I write separately because I would
adopt the standard the Supreme Court applies to state-sponsored
courtroom practices that raise similar issues instead of the
abuse of discretion standard applied by the majority (see
majority op. at 10-12).   Under this standard, appellate courts
would examine the totality of the circumstances to determine
whether the spectator conduct at issue presents "an unacceptable
risk . . . of impermissible factors coming into play" (Holbrook v
Flynn, 475 US 560, 570 [1986] [internal quotation marks and
citation omitted]).    The majority's approach is thoughtful and,
as it applies to these facts, correctly focuses on the trial
court's failure to take remedial measures.   An abuse of
discretion standard may lead, however, to inconsistent rulings by
trial courts and permits harmless error analysis by appellate


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                                - 2 -                           No. 45

courts even though spectator conduct may implicate a defendant's
"self-standing" right to a fair trial (People v Crimmins, 36 NY2d
230, 238 [1975]).
           The law with respect to courtroom conduct by state
actors is clear.    In several habeas corpus proceedings, the
Supreme Court considered whether such conduct in the courtroom
led to a defendant being deprived of a fair trial.   In Estelle v
Williams (425 US 501 [1976]), the Court confronted a defendant's
claim that he was "compell[ed] . . . to stand trial in jail garb"
(id. at 505).   Holbrook v Flynn involved a jury trial where four
uniformed law enforcement officers sat "in the first row of the
spectators' section," ostensibly for security purposes (475 US at
562).   The Court's analysis in both cases was grounded in the
presumption of innocence:
           "The presumption of innocence, although not
           articulated in the Constitution, is a basic
           component of a fair trial under our system of
           criminal justice. . . . To implement the
           presumption, courts must be alert to factors
           that may undermine the fairness of the
           fact-finding process. In the administration
           of criminal justice, courts must carefully
           guard against dilution of the principle that
           guilt is to be established by probative
           evidence and beyond a reasonable doubt"
           (Williams, 425 US at 503 [citation omitted]).
           Certain conduct, the Supreme Court found, was so
inherently prejudicial that it denied the defendant a fair trial.
In analyzing whether that constitutional violation had taken
place, the Court explained "the question must be not whether
jurors actually articulated a consciousness of some prejudicial

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effect, but rather whether 'an unacceptable risk is presented of
impermissible factors coming into play'" (Flynn, 475 US at 570,
quoting Williams, 425 US at 505).
          Also common in Flynn and Williams was the fact that
conduct complained of was perpetrated by a state actor, namely,
prison or law enforcement officials.     A subsequent habeas corpus
proceeding, however, involving spectator conduct -- trial
attendees wearing buttons with the victim's photograph -- did
reach the Supreme Court, but the issue of what standard should
apply to evaluate that conduct was not addressed because of the
procedural posture of the case (see Carey v Musladin, 549 US 70,
76 [2006]).   The Court explained it "ha[d] never addressed a
claim that such private-actor courtroom conduct was so inherently
prejudicial that it deprived a defendant of a fair trial" (id.
[footnote omitted]).   As a result, the Court determined that the
conclusion of the state appellate court in the defendant's
underlying criminal action was not "contrary to or an
unreasonable application of clearly established federal law as
determined by this Court" as required for federal habeas relief
(id. at 77; see Farmer, 583 F3d at 149 ["Carey v Musladin . . .
left it to lower courts to address claims" based upon "courtroom
displays by private actors"]).
          Concurring in the judgment in Musladin, Justice Souter
asserted that Williams and Flynn evinced an "intent to adopt a
standard at [a] general and comprehensive level . . . that . . .


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                                - 4 -                          No. 45

reaches the behavior of spectators" (Musladin, 549 US at 82
[Souter, J. concurring]; see also id. at 78-79 [Stevens, J.
concurring]).    I agree, and would apply the Williams/Flynn
standard here.
          As the Musladin majority noted, the inquiry in Williams
and Flynn asked "whether the practices furthered an essential
state interest," suggesting the standard "appl[ied] only to
state-sponsored practices" (id. at 76).   Certainly, the question
of state interest is a factor with no relevance to the facts and
circumstances here.   Nevertheless, as Justice Souter concluded,
the trial court "has an affirmative obligation to control the
courtroom and keep it free of improper influence" whether the
improper conduct is by a state actor "or an individual" (id. at
82 [Souter, J. concurring]).
          Accordingly, with respect to conduct of private actors
in the courtroom, the same standard should apply to answer the
critical question of whether the spectator conduct presented "'an
unacceptable risk . . . of impermissible factors coming into
play'" (id. at 75 [citation omitted]).
          Answering that question, as the Supreme Court observed
in Williams, is challenging:
          "The actual impact of a particular practice
          on the judgment of jurors cannot always be
          fully determined. But this Court has left no
          doubt that the probability of deleterious
          effects on fundamental rights calls for close
          judicial scrutiny. Courts must do the best
          they can to evaluate the likely effects of a
          particular procedure, based on reason,

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                                - 5 -                         No. 45

            principle, and common human experience" (425
            US at 504 [internal citations omitted])."
Three factors appear most relevant when assessing the prejudicial
effect of the conduct at issue.   First, courts should examine the
nature of the conduct or display and its potential to influence
the jury verdict (see e.g. Woods v Dugger, 923 F2d 1454, 1458-
1460 [11th Cir 1991] [considering prejudice from presence of
uniformed off-duty prison guards attending, as spectators, the
trial of the defendant for murder of a guard]; State v Allen, 182
Wash 2d 364, 385-386, 341 P3d 268, 278-279 [2015] ["Silent
showings of sympathy or support do not pose an unacceptable
threat to the defendant's fair trial right so long as the display
does not advocate for guilt or innocence"]; People v King, 215
Mich App 301, 305, 544 NW2d 765, 768 [1996] ["We are not
persuaded . . . that the wearing of buttons, which were less than
three inches in diameter . . . could have influenced the
panel"]).   Second, appellate courts must consider whether the
record of the courtroom situation is adequate to facilitate
review (see e.g. State v Iromuanya, 282 Neb 798, 823, 806 NW2d
404, 429 [2011]; State v Speed, 265 Kan 26, 48, 961 P2d 13, 29-30
[1998]; Nguyen v State, 977 SW2d 450, 457 [Tex Ct App 1998], affd
on other grounds 1 SW3d 694 [Tex Crim App 1999]).    Third, and not
necessarily determinative, appellate courts should consider the
response, if any, by the trial court to the conduct (see e.g.
Farmer, 583 F3d at 150 ["Moreover, once defense counsel called
the T-shirts to the district court's attention, the court

                                - 5 -
                                 - 6 -                       No. 45

instructed the government 'to urge (the spectators) not to come
into this courtroom with shirts with the picture"]; People v
Houston, 130 Cal App 4th 279, 316, 29 Cal Rptr 3d 818, 848
[2005]; State v Franklin, 174 W Va 469, 475, 327 SE2d 449, 455
[1985]).
           Applying the first factor, the offending shirts in this
case bore the victim's photograph and the phrase "Remembering Leo
Walton."   Such images could "raise a risk of improper
considerations" inasmuch the photograph and written message could
be construed as "an appeal for sympathy . . . and a call for some
response" that a juror might interpret to mean "a verdict of
guilty" (Musladin, 549 US at 83 [Souter, J. concurring]; see
generally People v Stevens, 76 NY2d 833, 835 [1990] ["photographs
of the victim taken while he or she was alive . . . may . . .
arouse the jury's emotions"]).    As other courts confronted with
similar displays have noted, however, jurors were just as "likely
to have viewed the buttons as signs of grief" instead of a
collective call for . . . conviction" (Iromuanya, 282 Neb at 828,
806 NW2d at 432).   The spectators were silent, evidently few in
number, and their T-shirts were partially covered.   Moreover,
unlike the wearing of law enforcement uniforms by persons in the
gallery, these T-shirts gave no suggestion of state approval of
the spectator's message (cf. Woods, 923 F2d at 1458-1460 [noting
"(a)bout half of the spectators appear to be wearing prison guard
uniforms" and "(t)he officers in this case were there . . . to


                                 - 6 -
                                - 7 -                        No. 45

communicate a message to the jury" even though "no state interest
c(ould) justify the uniformed presence of these off-duty
correctional officers" (footnotes omitted)]).
            Next, the limited record makes the potential impact of
the conduct more difficult to assess.   Defense counsel apparently
did not notice the shirts at first, and we are left with the
trial court's brief description of the T-shirts and somewhat
inconsistent recounting of the spectators' conduct in court.   At
summation, upon consideration of defense counsel's and the
prosecutor's arguments, the trial court determined the conduct
was not prejudicial, explaining his reasons on the record.
Thereafter, at the CPL 330.30 hearing, the court clarified the
record before us:
            "the jury was not inflamed by the simple
            wearing of the [T]-shirts by members of the
            decedent's family. They sat in the second
            row of the audience. I noticed one of the
            grieving members of the family wearing the
            shirt . . . several times.
            "I guess now it would be appropriate for me
            to make a better record of what the shirt
            was. It was a white [T-shirt] with a silk
            screen with a picture of the deceased with
            some written language on it. I had notice
            that shirt, [but] couldn't read what was
            written on it. It was not flauntily
            displayed in front of the jury, nor in any
            way did any members of the family bring undue
            attention to it. In fact, most of the
            members of the family had an outer garment on
            top of the [T]-shirt. So it wasn't even
            capable of seeing the entire thing."
We know nothing about how well, if at all, the jury could see the
T-shirts.   Moreover, only four people wore the shirts, which does

                                - 7 -
                                - 8 -                         No. 45

not on this record amount to "a formidable, albeit passive,
influence on the jury" (Franklin, 174 W Va at 474-475, 327 SE2d
at 454-455 [noting "from ten to thirty MADD demonstrators
remained in court throughout the trial" for an alcohol-related
vehicular homicide "and sat directly in front of the jury.    Some
cradled sleeping infants in their laps and all prominently
displayed their MADD buttons"]).
            Lastly, I agree with my colleagues that "[t]rial courts
have the inherent authority and the affirmative obligation to
control conduct and decorum in the courtroom, in order to promote
the fair administration of justice for all" (majority op. at 7).
Unquestionably, the better practice here would have been for
Supreme Court to have responded to the spectator conduct by
taking steps to end the display, but I cannot agree that all
spectator displays of a deceased victim's photograph should be
banned outright (see majority op. at 12, 13).    This is not to say
that any particular memorial or other display by spectators is
permissible, or that certain conduct necessitates a specific
response.   The risk of prejudice presented by spectator conduct
should always be evaluated on a case-by-case basis (see Musladin,
549 US at 83 [Souter, J. concurring]; Iromuanya, 282 Neb at 827,
806 NW2d at 432 [noting that Justice Souter "declined to embrace
a per se rule" regarding memorial buttons and instead concluded
that the issue in each case is whether the risk is
unacceptable]).


                                - 8 -
                                  - 9 -                              No. 45

            In sum, after considering nature of the conduct; the
record presented; and factoring in the trial court's response, or
rather lack thereof, to the conduct, there is no reasonable
probability that the conduct by the spectators created an
unacceptable risk to defendant's right to a fair trial.            The
spectators' silent display was not overwhelming and seemed to be
in the nature of an expression of sympathy, not a play to the
passion of the jury.     Expressions of grief by a decedent's family
members and loved ones are to be expected -- though not
necessarily tolerated -- during a homicide trial.         Trial courts
should continue to take measures to address the risks of such
conduct and avoid even the suggestion that improper factors may
have influenced the jury (see e.g. People v Pennisi, 149 Misc 2d
36, 37, 40 [Sup Ct, Queens County 1990] [trial court determined
that ribbon corsages worn by family members of victim and other
spectators could not be worn in the courtroom]).          Nevertheless,
the court's failure to respond here, while not optimal, is not
sufficient grounds for a new trial.
*   *   *    *   *   *    *   *    *      *   *   *   *    *   *     *    *
Order affirmed. Opinion by Judge Fahey. Chief Judge DiFiore and
Judges Abdus-Salaam and Stein concur. Judge Garcia concurs in
result in an opinion, in which Judges Pigott and Rivera concur.

Decided April 5, 2016




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