People v. Farless

Mercure, J. Appeal from a judgment of the County Court of Chemung County (Castellino, J.), rendered November 22, 1995, upon a verdict convicting defendant of the crimes of sodomy in the first degree and sexual abuse in the first degree. We are unpersuaded by defendant’s primary contention on [879] appeal, that he was deprived of his constitutional right to a fair trial and was unduly prejudiced by County Court’s denial of his request for a continuance to obtain civilian clothing to wear at the trial. Notably, a review of the record on appeal discloses that defendant failed to raise any objection to his lack of civilian attire until after the parties had already completed a full round of jury selection and, in fact, five jurors had been selected. By that time, the entire jury pool had been given an extended opportunity to observe defendant in his prison garb, and no possible purpose could have been served by disrupting the proceedings in order to locate clothing for defendant prior to conclusion of the first day of trial. Also, defendant made no request for a mistrial and failed to avail himself of County Court’s offer of a precautionary instruction that the jury was not to draw any inference or form any opinion based upon defendant’s clothing. Under the circumstances, we conclude that the claimed error was not preserved for our consideration, a fact that the dissenter has apparently chosen not to address. Defendant’s remaining contentions have been considered and also found to be lacking in merit. Even accepting defendant’s allegation that certain prospective jurors observed him entering the courthouse in handcuffs, it is settled law that a shackled defendant’s brief exhibition to venirepersons does not, by itself, constitute a deprivation of a fair trial (see, People v Fioravantes, 229 AD2d 784, 785-786, lv denied 89 NY2d 920; People v Dawson, 125 AD2d 860, 861, lv denied 69 NY2d 879; People v Mattison, 97 AD2d 621, 623). Next, the evidence adduced at the Huntley hearing provides ample support for County Court’s conclusion that defendant’s inculpatory statements, given following his willing submission to psychological stress evaluation testing, were not coerced (see, People v Tarsia, 50 NY2d 1; People v Sobchik, 228 AD2d 800, 802; People v Miller, 220 AD2d 902, 903, lv denied 88 NY2d 882). Finally, in view of defendant’s long criminal history, his status as a second felony offender and the nature of his crimes against very young children, we are unpersuaded that the sentences imposed, consecutive indeterminate prison terms of 10 to 20 years and 3 to 6 years, were unduly harsh (see, People v Bombard, 203 AD2d 711, 714, lv denied 84 NY2d 823; People v Vredenburg, 200 AD2d 797, 799, lv denied 83 NY2d 859). Cardona, P. J., Casey and Yesawich Jr., JJ., concur.