Issue before the Court: Whether (1) the trial court’s failure to conduct a hearing regarding
the use of a stun belt is a mode of proceedings error; and (2) counsel was ineffective for failing
to object to the non-judicial imposition of a stun belt?

Factual Background: The Sheriff’s Department required Daniel Bradford to wear a stun
belt during his trial. A stun belt, a torturous device that the UN has cautioned against for
more than two decades, is worn around the waist and can deliver significant electric shock to
the wearer at the push of a button. The trial court, unaware that the sheriff had required the
stun belt, never articulated a need for it, as required, and counsel did not object.
In a pro se C.P.L. § 440.10 motion, Mr. Bradford asserted that, after the sheriff’s deputy told
him the stun belt was required, he asked his attorney about it, only to be told there was nothing
that could be done. Mr. Bradford further alleged that the belt, itself, was very uncomfortable
and that he was distracted by the stress of having a sheriff’s deputy sitting behind him with
the activation switch at the ready. The motion was denied without a hearing and affirmed on
appeal over a two-judge dissent. One of the dissenters granted leave to appeal and the case
was designated for SSM treatment.

Held: Relying on People v. Cooke, 24 N.Y.3d 1196 (2016), without further analysis, the majority
held that the use of a restraint without the court’s articulation of a need for it—while error
under People v. Buchanan, 13 N.Y.3d 1 (2009)—is not a mode of proceedings error, making
C.P.L. § 440.10(1)(f) inapplicable. Rivera, the only current Court of Appeals judge to have
been on the Cooke court, disagreed with the majority’s reading of Cooke in her dissent, joined
by Wilson. She explained that, though Cooke held that the trial court’s failure to articulate a
need for the use of the stun belt was not a mode of proceedings error, the court had not
derogated that duty to a non-judicial officer as happened here. The mode of proceedings error
is not in the use of the stun belt, or even the court’s failure to articulate the necessity of the
stun belt, but in a non-judicial officer being the one to make the decision.

The Court nevertheless reversed the Fourth Department’s decision, finding that the portion
of Mr. Bradford’s 440 motion alleging ineffective assistance of counsel for failure to object to
this clear Buchanan error should not have been summarily denied. A hearing is required to
“determine if counsel had a legitimate explanation for declining to object,” including, for
example, whether Mr. Bradford complained about the stun belt or had consented to its use.
Rivera and Wilson disagreed here, too. They would have summarily granted the motion
because there were no issues of fact to clarify at a hearing. They took issue with the majority’s
suggestion that Mr. Bradford may have consented to the stun belt, nothing that troughout his
motion papers, he characterized the use of a stun belt as “forced,” notwithstanding that the
Sherriff required him to sign a consent form each day. It was also undisputed in the motion
papers that he asked his attorney about the stun belt. Highlighting the lack of humanity
inherent in the majority’s opinion, Rivera explained that counsel will never be able to articulate
a strategic reason for his failure to object because the choice to allow something as barbaric as
a stun belt is a fundamental decision reserved for the person wearing the stun belt.

CAL Observes: Always loathe to vacate a conviction based on the 440 motion papers alone,
the Court of Appeals remanded for a hearing at which there is really nothing to establish.
There is no dispute that Mr. Bradford wore a stun belt at the requirement of the Sherriff, not
the trial court, and that counsel never objected. Trial counsel never offered an affirmation
refuting Mr. Bradford’s version of events—that he asked his attorney about the stun belt and
was told, incorrectly, that there was nothing his attorney could do about it—and the
prosecution never offered any other proof that Mr. Bradford’s claims were untrue, beyond
pointing out that he had complained about his attorney at trial, but never mentioned the stun
belt issue. Arguably, that should have been the end of the litigation, with summary vacatur
under C.P.L. § 440.30(3).

Reading between the lines, however, it seems like majority shared the motion court’s
suspicions regarding Mr. Bradford’s allegation that he told/complained to his attorney about
the use of the stun belt—an argument the prosecution pressed in its two-page (?!) brief. C.P.L.
§ 440.30(4)(d) requires more than simply disbelieving a defendant’s allegations before
summary denial, hence, the hearing. That characterization also potentially limits some of the
outrageousness of the majority’s apparent suggestion that counsel could make a strategic
decision to leave the stun belt on his client. The majority remanded for a hearing to determine
whether there was a “legitimate explanation” for the failure to object, careful not to use the
Strickland “strategic choice” magic language. The examples the majority provided further
support that reading.

Final stray observation is that this whole litigation was a mess and certainly not helped by SSM
status. Query whether the fact that the motion practice happened exclusively in the height of
the pandemic—late February to June 2020—had anything to do with the Court feeling like a
hearing was warranted.