State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 16, 2015 106150 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

MICHAEL ALEXANDER,

Appellant.

________________________________

Calendar Date: February 18, 2015

Before: Peters, P.J., Lahtinen, Garry and Lynch, JJ.

__________

Matthew C. Hug, Troy, for appellant.

J. Anthony Jordan, District Attorney, Fort Edward (Brandon

P. Rathbun of counsel), for respondent.

__________

Garry, J.

Appeal from a judgment of the County Court of Washington

County (McKeighan, J.), rendered May 6, 2013, upon a verdict

convicting defendant of the crime of attempted assault in the

second degree.

In April 2012, defendant, an inmate in a correctional

facility, engaged in a fight with another inmate (hereinafter the

victim). Defendant was charged in a four-count indictment and

convicted by a jury of attempted assault in the second degree. 

County Court sentenced him as a second felony offender to a

prison term of 2 to 4 years. Defendant appeals.

Initially, defendant contends that he was deprived of due

process by a delay of approximately seven months between the
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incident and the issuance of the indictment. An unreasonable and

unjustified indictment delay violates a defendant's due process

rights and may result in dismissal of the indictment, even when

no prejudice results (see People v Lesiuk, 81 NY2d 485, 490

[1993]; People v Morris, 25 AD3d 915, 916 [2006], lvs denied 6

NY3d 851, 853 [2006]). The relevant factors in determining

whether a delay was unreasonable are the same as those applied to

speedy trial claims, including "the extent of the delay, reason

for the delay, nature of the underlying charges, any extended

pretrial incarceration and any indications of prejudice or

impairment to the defense attributable to the delay" (People v

Garcia, 46 AD3d 1120, 1120-1121 [2007], lv denied 10 NY3d 863

[2008]; accord People v Ruise, 86 AD3d 722, 722-723 [2011], lv

denied 17 NY3d 861 [2011]; see People v Vernace, 96 NY2d 886, 887

[2001]). Here, the People offered no explanation for the delay. 

However, the seven-month period between the incident and the

indictment was not egregiously long (see People v Staton, 297

AD2d 876, 876-877 [2002], lv denied 99 NY2d 565 [2002] [six

months and 21 days]; People v Diaz, 277 AD2d 723, 724 [2000], lv

denied 96 NY2d 758 [2001] [six months]; People v Allah, 264 AD2d

902, 902-903 [1999] [nine months]; People v Cooper, 258 AD2d 815,

816 [1999], lv denied 93 NY2d 1016 [1999] [seven months]). The

charges against defendant were serious and, as he was already

incarcerated, "the delay did not impose a further burden upon his

liberty" (People v McCormick, 17 AD3d 785, 786 [2005]). As for

prejudice, nothing in the record substantiates defendant's

assertion that the delay prevented him from determining the

identities of other inmates who might have witnessed the incident

but could have been released or transferred in the interim

(compare People v Johnson, 38 NY2d 271, 277 [1975]). 

Accordingly, we find that defendant was not deprived of his due

process rights on this ground. 

Defendant next contends that his conviction was not

supported by legally sufficient evidence and was against the

weight of the evidence. To convict defendant of attempted

assault in the second degree, the People were required to prove

that he intended to cause physical injury to another person and

"engage[d] in conduct which tend[ed] to effect the commission of

such crime" (Penal Law § 110.00; see Penal Law § 120.05 [7];
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People v Gannon, 301 AD2d 873, 873 [2003]).1 The testimony

established that several correction officers saw two inmates

fighting with each other, throwing punches and struggling back

and forth. One of the officers testified that he saw a weapon

that resembled an ice pick in the right hand of one of the

inmates, which that inmate wielded about four times in a downward

striking motion toward the other participant; the other

participant was making slashing motions from left to right. The

officer later identified defendant as the inmate he had seen with

the ice pick weapon. Officers interrupted the fight, ordered

both inmates to lie on the ground and placed them in restraints. 

When defendant was assisted to his feet, a sergeant observed a

weapon resembling an ice pick on the floor where defendant had

been lying. A weapon with a razor blade was found under the

victim. Defendant suffered several straight-edged lacerations

that were consistent with the razor blade, while the victim

sustained multiple puncture wounds and scratches to his head and

upper torso that were consistent with the weapon that looked like

an ice pick.

Defendant offered a different account, testifying that he

was suddenly attacked by an inmate wielding an ice pick. While

defendant attempted to fend off this attack, he felt himself

being cut by a different weapon employed by another individual. 

He was unable to identify either of these attackers, and the

inmate with the ice pick ran away when correction officers

approached. Defendant turned around and began fighting with the

first person he found behind him, who proved to be the victim. 

Defendant explained, "I [was] already upset. So whoever was

behind me [was] getting it." He stated that he did not possess a

weapon, was left-handed and was not ambidextrous. We find that

the evidence, viewed in the light most favorable to the People,

is legally sufficient to establish "that defendant intended to

cause physical injury to another inmate and engaged in conduct

tending to effect commission of that crime" (People v Gannon, 301

AD2d at 873; see People v Hawkins, 290 AD2d 812, 813 [2002], affd

1 Defendant stipulated that he was a previously convicted

felon and was incarcerated in a correctional facility when the

incident occurred (see Penal Law § 120.05 [7]). 
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99 NY2d 592 [2003]). Further, although another verdict would not

have been unreasonable, viewing the evidence in a neutral light

and deferring to the jury's credibility determinations, we are

satisfied that the verdict was not against the weight of the

evidence (see People v Chasey, 5 AD3d 815, 816-817 [2004], lv

denied 2 NY3d 797 [2004]; see generally People v Bleakley, 69

NY2d 490, 495 [1987]).

We find no merit in defendant's contention that his state

and federal due process rights were violated when he was shackled

during trial. Because of the risk of prejudice, a defendant has

a right to be free of visible restraints during criminal

proceedings unless the trial court states a case-specific reason

for their use (see Deck v Missouri, 544 US 622, 624 [2005];

People v Best, 19 NY3d 739, 743 [2012]; People v Clyde, 18 NY3d

145, 153-154 [2011], cert denied ___ US ___, 132 S Ct 1921

[2012]). Here, County Court failed to state its reasons for

requiring defendant to wear leg shackles. However, the record

reveals that the restraints were not visible, nor were they

otherwise called to the jury's attention. Before trial, the

People requested that defendant wear restraints during the trial

because of his lengthy disciplinary history and the serious

nature of his offense. Defense counsel objected based upon

defendant's appropriate behavior during pretrial proceedings. 

County Court agreed that defendant's conduct had been

"professional" and deferred its decision pending review of his

disciplinary history. At the beginning of trial, the People

renewed their request and defense counsel repeated his objection. 

County Court ruled that defendant's hand restraints should be

removed but that his leg shackles should be retained, stating

that "[t]hey are beneath the desk. The jurors can't see them."2

Defense counsel neither objected nor disagreed with the statement

that the jury would be unable to see defendant's shackles;

instead, he requested that the court require everyone to remain

seated when the jury entered and exited the courtroom, so that

jurors would not hear the sound made by the shackles when

2 Although not revealed in the record, the People state on

appeal that the desks in the courtroom are constructed with

wooden skirting that blocks any view of their undersides. 
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defendant changed position. The court granted this request and,

throughout the trial, excused the jury before defendant took the

stand, left the stand or was remanded to the custody of

correction officers. Nothing in the record suggests that the

shackles were ever visible to the jurors or that any other

circumstances could have led them to infer that defendant's legs

were restrained (compare People v Cruz, 17 NY3d 941, 944-945

[2011]; People v Jenner, 39 AD3d 1083, 1087-1088 [2007], lv

denied 9 NY3d 845 [2007]; People v Roraback, 242 AD2d 400, 403

[1997]). On this record, we thus find that there is no

reasonable possibility that the use of shackles resulted in

prejudice to defendant, and he was not deprived of a fair trial

on this ground.

County Court did not abuse its discretion in denying

defendant's untimely request for a missing witness charge. A

request for such a charge "must be raised as soon as practicable

so that the court can appropriately exercise its discretion and

the parties can tailor their trial strategy to avoid 'substantial

possibilities of surprise'" (People v Gonzalez, 68 NY2d 424, 428

[1986], quoting McCormick, Evidence § 272 at 806 [3d ed 1984];

accord People v Turner, 73 AD3d 1282, 1283-1284 [2010], lv denied

15 NY3d 896 [2010]). Here, the request was not made until after

the close of proof and was thus untimely (see People v Rodney, 79

AD3d 1363, 1365 [2010], lv denied 19 NY3d 1105 [2012]).3

Finally, defendant contends that the verdict was inherently

self-contradictory in that the instructions given to the jury on

the charge on which defendant was convicted were identical to

those given for a separate charge upon which he was acquitted. 

As defendant did not raise this assertion before the jury was

discharged and County Court had no opportunity to address it, it

is unpreserved (see People v Muhammad, 17 NY3d 532, 541 n 5

[2011]; People v Rodwell, 122 AD3d 1065, 1068 [2014]; People v

Dale, 115 AD3d 1002, 1006-1007 [2014]). In any event, our review

reveals that the instructions on the two charges were not, in

3 Nor did defendant reveal that the proposed testimony

from the two witnesses met the necessary prerequisites to support

the charge (see DeVito v Feliciano, 22 NY3d 159, 165-166 [2013]). 
-6- 106150 

fact, identical. As charged, "a theoretical defendant" could

have been guilty of the first offense, but not of the second

(People v Muhammad, 17 NY3d at 543; see People v Elmy, 117 AD3d

1183, 1184 [2014]). Thus, we find no reason to take corrective

action in the interest of justice (see People v Rolfe, 83 AD3d

1217, 1218 [2011], lv denied 17 NY3d 809 [2011]; People v

Pearson, 69 AD3d 1226, 1227 [2010], lv denied 15 NY3d 755

[2010]).

Peters, P.J., Lahtinen and Lynch, JJ., concur.

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court