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

1200
KA 09-01058
PRESENT: SCUDDER, P.J., FAHEY, CARNI, VALENTINO, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

GREGORY HARVEY, DEFENDANT-APPELLANT.


JOHN A. HERBOWY, ROME, FOR DEFENDANT-APPELLANT.

GREGORY HARVEY, DEFENDANT-APPELLANT PRO SE.

JEFFREY S. CARPENTER, ASSISTANT DISTRICT ATTORNEY, HERKIMER (JACQUELYN
M. ASNOE OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Herkimer County Court (Patrick L.
Kirk, J.), rendered June 14, 2007. The judgment convicted defendant,
upon a jury verdict, of rape in the first degree, assault in the third
degree and unlawful imprisonment in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of rape in the first degree (Penal Law § 130.35
[1]), assault in the third degree (§ 120.00 [1]), and unlawful
imprisonment in the second degree (§ 135.05). We reject the
contention of defendant that County Court erred in keeping him
shackled during trial. The court ordered defendant to wear shackles
at trial after conducting a hearing on the issue and making “findings
on the record” concerning the necessity for such restraints (People v
Buchanan, 13 NY3d 1, 4). We conclude that the court’s articulated
concern with the level of security in the courtroom and courtroom
decorum, based on defendant’s prior conduct, justified the court’s
decision to keep defendant shackled during trial (see People v Rouse,
79 NY2d 934, 935). The court minimized the possibility of prejudice
by instructing the jury, during its preliminary instructions, to
disregard the restraints (see id.).

     Upon our review of the record, we further conclude that the
evidence is legally sufficient to support the conviction (see
generally People v Bleakley, 69 NY2d 490, 495). Moreover, although a
finding that defendant did not commit the crimes of which he was
convicted would not have been unreasonable (see generally id.), we
conclude that, upon viewing the evidence in light of the elements of
the crimes as charged to the jury, it cannot be said that the jury
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                                                        KA 09-01058

failed to give the evidence the weight it should be accorded (see
generally People v Danielson, 9 NY3d 342, 349). We further conclude
that the sentence is not unduly harsh or severe. Finally, we have
considered the contentions raised by defendant in his pro se
supplemental brief and conclude that none warrants modification or
reversal of the judgment.




Entered:   November 9, 2012                    Frances E. Cafarell
                                               Clerk of the Court
