The People of the State of New York, Respondent, v. Deon Nelson, Appellant

The People of the State of New York, Respondent, v Deon Nelson, Appellant. [635 NYS2d 574] [MAJORITY] —Case held, decision reserved and matter remitted to Onondaga County Court for further proceedings in accordance with the following Memorandum: The record indicates that, as jury selection was about to begin, defendant was in court wearing a leg restraint, and was surrounded by seven Sheriffs Deputies. "While the question of securing the defendant in the courtroom rests within the sound discretion of the trial court, there must exist on the record testimony regarding the necessity for securing the defendant” (People v Reingold, 44 AD2d 191, 197). The record contains no such testimony. That error may be cured, however, by a post-trial hearing (see, People v Hope, 67 AD2d 754,755; People v Reingold, supra; People v Williams, 36 AD2d 1018), which should address the nature of the leg restraint, the extent to which it was visible to the jury and the reasons for its necessity, as well as the number of Sheriff's Deputies present and the reasons for their presence. (Appeal from Judgment of Onondaga County Court, Burke, J.—Murder, 2nd Degree.) Present—Denman, P. J., Lawton, Wesley, Doerr and Balio, JJ.