This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 6
The People &c.,
             Respondent,
        v.
Rafael Then,
             Appellant.




          Patricia M. Pazner, for appellant.
          Joseph N. Ferdenzi, for respondent.




MEMORANDUM:
          The order of the Appellate Division should be affirmed.
          The issue on this appeal is whether defendant was
denied a fair trial when, for half a day of jury selection, he
was compelled to wear orange correctional pants.   We hold that
defendant was not denied his right to a fair trial because there


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is no evidence on this record that the correctional pants were
visible to the jury.
          Defendant was arrested while getting into a vehicle
that had been stolen at gunpoint twelve days earlier and charged
with first- and second-degree robbery.     Before jury selection
began, defendant, who was seated in a wheelchair, complained that
he did not have his own clothing because he had not been able to
contact his family and requested an adjournment from that day, a
Thursday, to the following Monday.      The trial judge noted that he
understood defendant's concerns and would arrange for clothes to
be delivered to the defendant, adjourned the proceedings until
after lunch, but denied the request for a four-day adjournment.
Following a lunch break, and outside the presence of prospective
jurors, the trial court noted
          for the record that defendant does appear, I observed
          when he came in he has the orange correctional pants
          on, however, he appears to be wearing a black knitted
          top and that the defendant is, I'm going to actually
          push the chair in a little closer under the table, but
          he is at the end of a long table that is very wide and
          separated by one chair and his attorney is on the
          opposite end of that chair, and this defendant is the
          furthest away possible from the prospective jurors,
          from the jurors in the courtroom, and it's not likely
          that unless they strained that they would be able to
          see that he's wearing orange sweats. We're placing a
          call into the Department of Corrections so that they
          make sure that the defendant is wearing civilian
          clothes tomorrow.
Defense counsel requested an adjournment to the next day and the
judge denied the request.   The entire jury panel then entered the
courtroom.   When the prosecutor asked whether "[a]nybody when


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they came in here and looked in and the parties were introduced
notice[d] something about the defendant," the only response was
from a prospective juror who noted, "He's in a wheelchair."     The
prosecutor assured the panel that defendant's use of a wheelchair
had nothing to do with the case and instructed the jury to put
aside that fact.   Six jurors were chosen.
          The next day, defense counsel repeated his objection to
the fact that half the jury was seated while defendant was in
"Department of Corrections pants."     The court noted that
defendant was "dressed appropriately today."     For the remainder
of the trial, defendant wore a suit.     After hearing testimony
from the victim and the officer who arrested defendant, the jury
found defendant guilty of first- and second-degree robbery.
          Defendant appealed his conviction and the Appellate
Division affirmed, holding that "the fact that the defendant wore
prison pants for half a day of jury selection was not an error so
egregious as to deprive the defendant of his right to a fair
trial" (People v Then, 128 AD3d 864 [2nd Dept 2015]).     A Judge of
this Court granted leave to appeal (25 NY3d 1208) and we now
affirm.
          Under the circumstances described here by the trial
judge on the record, there is no merit to defendant's contention
that he was denied a fair trial because he was compelled to
appear before the jury in correctional garb.     We have previously
held that "to require [a defendant] to appear in convict's attire


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-- a continuing visual communication to the jury -- is to deny"
the defendant the right to appear "with the dignity and self-
respect of a free and innocent" person (People v Roman, 35 NY2d
978 [1975]), consistent with the Supreme Court's holding that
"[t]he State cannot, consistently with the Fourteenth Amendment,
compel an accused to stand trial before a jury while dressed in
identifiable prison clothes" (Estelle v Williams, 425 U.S. 501, 502
[1976]).      These concerns are not implicated here, however, where
there is no evidence that defendant's orange correctional pants
were visible to the jury and the clothing that was visible to the
jury was clearly not identifiable as correctional garb (cf.
People v Harper, 47 NY2d 857, 858 [1979]).          Accordingly, the
concerns articulated in Estelle and Roman do not apply and the
trial judge committed no error in allowing jury selection to
proceed that day.      Because we find no error here, we do not
address whether harmless error analysis applies when a defendant
is compelled to stand trial before a jury dressed in identifiable
prison clothes.
              Defendant's remaining contention is unpreserved for our
review.
*   *     *    *   *    *   *   *    *      *   *   *   *   *   *   *     *
Order affirmed, in a memorandum. Chief Judge DiFiore and Judges
Rivera, Abdus-Salaam, Stein, Fahey and Garcia concur. Judge
Wilson took no part.

Decided February 9, 2017



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