By Daniel Wiessner
ALBANY, N.Y., Nov 20 (Reuters) - The Court of Appeals on
Tuesday rebuffed a bid by a man convicted of offering a
12-year-old boy money to expose himself, finding it was harmless
error to have kept the man handcuffed and shackled during a
In a 5-1 decision, the court on Tuesday affirmed the
conviction of Emil Best for endangering the welfare of a child.
The court found that because there was overwhelming evidence
against Best, including his own admission that he offered the
boy $50 to show Best his penis as a joke, the trail judge's
failure to state a reason for restraining him did not warrant a
"Given (the) quantum of evidence, we do not think there is
any reasonable possibility that (Best's) appearance in handcuffs
contributed to (Nassau County District Court Judge Sondra
Pardes's) finding of guilt," Judge Carmen Ciparick wrote for the
During a pretrial hearing and the 2008 trial, Best's
attorney asked Pardes at least three times to remove his
client's handcuffs and shackles, the court said. Pardes ordered
that Best have his hands cuffed in the front, rather than behind
his back, but otherwise denied the requests.
The judge did not give any reason for keeping Best
restrained, the Court of Appeals said.
Pardes convicted Best of endangering the welfare of a child.
The Appellate Division, Second Department, last year
affirmed, finding that Pardes, as a judge, was "uniquely capable
... of making an objective determination" about Best's guilt
despite his restraints.
The Court of Appeals on Tuesday upheld the conviction
because of the evidence against Best, but Ciparick nevertheless
noted, "Judges are human, and the sight of a defendant in
restraints may unconsciously influence even a judicial fact
Judges Victoria Graffeo, Eugene Pigott, Susan Read and
Robert Smith concurred.
In dissent, Chief Judge Jonathan Lippman said restraints
undermine the presumption of innocence, even during bench
trials, and judges are obligated to justify their use.
"In a bench trial where the court chooses to keep a
defendant in shackles without the adequate record justification,
the judge prioritizes convenience over the administration of
justice," Lippman wrote.
Best's attorney, Tammy Feman, and the Nassau County District
Attorney's office did not return requests for comment.
The case is the People v. Emil Best, New York State Court of
Appeals, No. 194.
For the prosecution: Nassau County Assistant District
Attorney Joanna Hershey.
For Best: Tammy Feman of the Legal Aid Society of Nassau
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