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People v. Leitzsey

142 A.D.3d 918 Court N.Y. App. Div. Decision date 2016-09-29 English

Judges Concur — Mazzarelli, J.P., Acosta, Saxe, Moskowitz and Gesmer, JJ.

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p. 918
The People of the State of New York, Respondent, v Eldred Leitzsey, Appellant.
[37 NYS3d 883]—

Judgment, Supreme Court, New York County (Renee A. White, J.), rendered February 17, 2009, convicting defendant, following a jury trial, of four counts of aggravated harassment of an employee by an inmate, and sentencing him, as a second felony offender, to three consecutive terms and one concurrent term of 2V2 to 5 years, unanimously affirmed.

The court properly exercised its discretion in ordering that defendant be kept in physical restraints during the trial. De

p. 919
fendant’s constitutional claim to the contrary is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits. Although the use of restraints that are visible to the jury requires that a particularized justification be placed on the record (People v Clyde, 18 NY3d 145 , 152 [2011]; People v Cruz, 17 NY3d 941 , 944-945, 945 n [2011]), here the court’s initial order required that the restraints be concealed from the jury by means of draping material, and that the prosecutor’s table be similarly draped in order to prevent the jury from drawing any inferences. It was only at defendant’s insistence that the restraints were revealed to the jury (see People v Martinez, 284 AD2d 157 [1st Dept 2001]). In any event, the court set forth an adequate, case-specific justification, based on security concerns that included defendant’s criminal history, his conduct while incarcerated and the nature of the crimes charged, which involved attacks on correction officers.

The court properly imposed consecutive sentences on three of defendant’s convictions, because the evidence showed that, in three separate throws, he threw a mixture of feces and urine at correction officers. Although part of a single transaction, the three offenses were separate acts committed in violation of Penal Law § 240.32 (see People v Rodriguez, 25 NY3d 238 , 244 [2015]).

Concur — Mazzarelli, J.P., Acosta, Saxe, Moskowitz and Gesmer, JJ.

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