People v. Hilliard

• Decision Date: 28 July 1988
• Citation: 531 N.Y.S.2d 386,142 A.D.2d 885
• Parties: The PEOPLE of the State of New York, Respondent, v. Otis HILLIARD, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 386

531 N.Y.S.2d 386

142 A.D.2d 885

The PEOPLE of the State of New York, Respondent, v. Otis HILLIARD, Appellant.

Supreme Court, Appellate Division,

Third Department.

July 28, 1988.

Paul L. Gruner (Denise Y. Dourdeville, of counsel), Kingston, for appellant.

Michael Kavanagh, Dist. Atty. (Joan Lamb, of counsel), Kingston, for respondent.

Before KANE, J.P., and CASEY, HARVEY, MERCURE and MIKOLL, JJ.

KANE, Justice Presiding.

Appeal from a judgment of the County Court of Ulster County (Vogt, J.), rendered June 11, 1986, upon a verdict convicting defendant of the crime of assault in the second degree.

Defendant was an inmate at Eastern Correctional Facility in Ulster County confined to the special housing unit. On each occasion when he was outside his cell, he was placed in handcuffs. On August 5, 1985, he was being escorted back to his cell by Correction Officer Gerhardt Krein after receiving a haircut. On the way to defendant's cell, the two men bumped into each other as Krein waited for defendant to keep pace with him along the way. This resulted in some comment by defendant to the effect that Krein not push him. Upon arrival at his cell, defendant, on several occasions, refused to enter until the arrival of two other correction officers at the scene. Upon entering the cell, he followed the standard procedure of extending his hands through an opening in the cell door to have the handcuffs removed. After the left hand had been released and as Krein attempted to undo the right handcuff, defendant suddenly pulled Krein's right arm down and through the hatch; this caused Krein's right arm to scrape against the steel hatch and propel his body into the cell door, resulting in painful injuries to his right arm. Defendant then threw the handcuffs and key out of the cell opening and proceeded to bang the cell door and slam his body against it. Krein received medical attention for his injuries, which consisted of multiple abrasions, swelling and numbness in the arm and fingers. Defendant was indicted for the crime of assault in the second degree, subsequently convicted, and this appeal ensued.

We affirm. Contrary to defendant's contention, each element of the crime of assault in the second degree was established with proof of guilt beyond a reasonable doubt (see, Penal Law § 120.05 [7]; § 10.00[9]; People v. Rojas, 61 N.Y.2d 726, 472 N.Y.S.2d 615, 460 N.E.2d 1100; People v. Thompkins, 97 A.D.2d 593, 468 N.Y.S.2d 207).

We also reject defendant's argument that County Court abused its discretion in requiring defendant to wear handcuffs and shackles in the event he elected to appear before the Grand Jury. A hearing was held before the court made its decision on these issues, at which Sergeant Bruce Hinkley testified and described the manner in which defendant was restrained while in prison because of his discipline record and assaultive behavior. In making its decision, County Court relied upon the testimony of that witness and the statements of the attorneys for the respective parties in ordering defendant to appear in civilian clothing and be duly restrained in the event he elected to appear before the Grand Jury. Defendant declined to testify because of this ruling and now claims that he would have been seriously prejudiced had he appeared before the Grand Jury so restrained.

We note that defendant was charged with a crime of violen at a time when he was confined to a special housing unit while in prison; that a Grand Jury room is smaller and more intimate than a court room and that the function of a Grand Jury is far different than that of a trial jury. Accordingly, we fail to perceive any basis for a claim of prejudice and, in any event, County Court's determination, made after a hearing, was within the proper exercise of its discretion ( see, People v. Mendola, 2 N.Y.2d 270, 159 N.Y.S.2d 473, 140 N.E.2d 353; People v. Gonzalez, 115 A.D.2d 899, 496 N.Y.S.2d 796, appeal dismissed 68 N.Y.2d 995, 510 N.Y.S.2d 564, 503 N.E.2d 120).

Defendant also contends that it was error for...