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

879
KA 11-00358
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

MICHAEL L. SCHROCK, DEFENDANT-APPELLANT.


WAGNER & HART, LLP, OLEAN (JANINE C. FODOR OF COUNSEL), FOR
DEFENDANT-APPELLANT.

MICHAEL L. SCHROCK, DEFENDANT-APPELLANT PRO SE.

LORI PETTIT RIEMAN, DISTRICT ATTORNEY, LITTLE VALLEY, FOR RESPONDENT.


     Appeal, by permission of a Justice of the Appellate Division of
the Supreme Court in the Fourth Judicial Department, from an order of
the Cattaraugus County Court (Michael L. Nenno, J.), entered January
4, 2011. The order denied the CPL 440.10 motion of defendant.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Cattaraugus County Court for
further proceedings.

     Memorandum: Defendant appeals from an order denying his motion
to vacate the judgment of conviction pursuant to CPL 440.10. The
judgment had been entered following a jury trial at which defendant
was found guilty of having committed numerous felonies, including
attempted murder in the first degree and robbery in the first degree.
In support of his CPL 440.10 motion, defendant contended that he is
entitled to a new trial because he was improperly required to wear a
stun belt at trial. Defendant further contended that he is entitled
to a new trial because his trial attorney was ineffective for failing
to object to the use of the stun belt and for failing “to adequately
develop” his insanity defense. According to defendant, in pursuing
that defense his trial attorney should have interviewed defendant’s
fellow inmate, who had provided the attorney with a written statement
in which he claimed to have overheard various jail deputies talking
about defendant’s mental condition. County Court denied the motion
following a hearing.

     We agree with the court that defendant was not deprived of
effective assistance of counsel. As the court properly determined,
defense counsel was not ineffective in failing to object to the use of
the stun belt inasmuch as the seminal case regarding the use of stun
belts, People v Buchanan (13 NY3d 1), was not decided until
                                 -2-                           879
                                                         KA 11-00358

approximately two years after defendant’s trial. We note that
defendant wore the stun belt for only one day of trial, during the
testimony of the People’s rebuttal witness, and he never complained to
anyone — including his attorney — about having to wear it. In
addition, there is no indication in the record that the stun belt
affected defendant’s ability to communicate with his attorney. We
also reject defendant’s claim that defense counsel did not adequately
develop his insanity defense by, e.g., failing to interview a fellow
inmate, and thus was ineffective. Even assuming, arguendo, that the
fellow inmate provided a written statement to defendant’s attorney
setting forth that he overheard jail deputies discussing defendant’s
mental condition, we conclude that the fellow inmate possessed only
hearsay information and thus could not have been called as a witness
at trial. The record also demonstrates that defendant’s attorney
called numerous witnesses at trial to support the insanity defense,
including employees of the jail who observed defendant’s behavior
while incarcerated.

     We now turn to defendant’s contention that he was improperly
required to wear the stun belt. As the court recognized, the use of
the stun belt in this case was improper under Buchanan because such
use was not approved by the court; in fact, the court was not aware
that the Sheriff had outfitted defendant with the stun belt.
Nevertheless, the court determined that, although the use of the stun
belt was improper, the error was harmless in light of the “totality of
the evidence.” As we recently held in People v Barnes (96 AD3d 1579,
1579-1580), the improper use of a stun belt is not subject to harmless
error analysis (see People v Cruz, 17 NY3d 941, 945 n).

     Although there may be other reasons to justify the denial of
defendant’s motion, the only issues that we may consider on this
appeal are those that “may have adversely affected the appellant” (CPL
470.15 [1]; see People v Concepcion, 17 NY3d 192, 194-195; People v
LaFontaine, 92 NY2d 470, 473-474). Thus, our review is limited to the
issues determined by the court in denying the motion, i.e., that
defense counsel was not ineffective and that the error in requiring
defendant to wear a stun belt is harmless, and for the reasons set
forth herein we conclude that the court erred in determining that
harmless error analysis is applicable. We therefore hold this case,
reserve decision, and remit the matter to County Court to rule upon
any other issues raised by the People in opposition to the motion.




Entered:   October 5, 2012                     Frances E. Cafarell
                                               Clerk of the Court
