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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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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 nonverbal (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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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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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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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

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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

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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

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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]).

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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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