In People v Buchanan [4th Dept 6/6/08] (here) the Fourth Department unanimously held that the use of a stun belt that is not visible to the jury is subject to the same judicial scrutiny as other forms of physical restraint that are visible. Spefically, the Court held that the use of a stun belt that is not visible to the jury requires the court to make the same individualized security determination required for the use of physical restraints that are visible (see Deck v Missouri, 544 US 622, 632).

The Court,however, divided 3-2 as to what constitutes an individualized determination. The majority held that the requirement was satisfied where

the court stated that it had a policy to use restraints in "serious" cases and that it would comply with the recommendation of the Sheriff's deputy to use the restraint.

The dissenting Justices, in an opinion by Justice Fahey, strongly disagreed that the trial judge's reasoning constituted an individualized determination:

In this case, the court set forth on the record three reasons for the use of the stun belt. First, the court stated that it was its policy to place all defendants accused of a crime of a serious nature in either leg shackles or a stun belt during trial. Second, the court stated that the Sheriff's Department wanted defendant to wear the stun belt. Third, the court stated its belief that "an innocent man on trial for murder is more dangerous than a guilty one."
In point of fact, the court noted that defendant had "done [nothing] to warrant" the use of the stun belt, and the only reference to defendant's background was the court's acknowledgment that defendant had never caused any problems in the courtroom in his previous appearances before the court....
The court's blanket policy of placing all defendants in either leg shackles or a stun belt based on the nature of the crime charged is directly contrary to the requirement that there be a case by case determination by the court concerning the necessity for the use of restraints along with the requisite "close judicial scrutiny." The court's blanket policy directly violates the due process requirements for the use of visible restraints... The court should not relegate its duty to apply judicial scrutiny to the Sheriff's Department but, rather, it may consider the recommendation of the Sheriff's Department in making its determination (see generally People v Thomas, 125 AD2d 873, 874)...
Finally, the court's statement "that an innocent man on trial for murder is more dangerous than a guilty one" goes to the very heart of our concern with respect to the procedure used in determining whether the defendant in this case was required to wear a stun belt. The presumption of innocence must be maintained against all attempts to erode it, and courts must ensure that it is not undermined by a desire for convenience or the demands of bureaucratic policies. The presumption of innocence requires that a trial not only be fair, but that it also appears to be fair. The appearance of fairness requires that physical restraints, whether visible or not, be used only where there is an essential state interest. Nothing in the record before us indicates that there was any essential state interest considered in the context of this defendant.