(dissenting). In April 2008, the defendant was charged by indictment with murder in the second degree, attempted murder in the second degree, assault in the first degree, and criminal possession of a weapon in the second degree (two counts). According to the evidence presented by the People at trial, Mark Maldonado knew the defendant from “doing little things together, making money, little hustles here and there.” In September 2007, Maldonado and the defendant were jailed in Toms River, New Jersey. Maldonado was incarcerated for approximately two weeks, after which he was released on bail. In March 2008, after the defendant was released, Maldonado saw the defendant, who accused Maldonado of allowing him to languish in jail. The defendant was very unhappy with Maldonado. Approximately one week later, Maldonado saw the defendant again. The defendant indicated that he had nowhere to go, and Maldonado offered to allow the defendant to sleep on the couch in the apartment Maldonado shared with Leo Walton. They went to the apartment, and Walton was home. After Maldonado served the defendant a drink, Maldonado went into his bedroom with his girlfriend, closed the door, and locked it. Approximately 15 to 20 minutes later, Maldonado heard three gunshots. The defendant then kicked Maldonado’s bedroom door open and shot Maldonado four times. The defendant ran out of the room. Maldonado survived the shooting. Walton died as a result of three gunshot wounds to the back of his head.
At trial, the defense advanced a justification argument. This position was supported, according to the defense, by the writ*66ten statement the defendant gave to law enforcement officials, in which he stated that he was in the apartment when Maldonado emerged from a hallway and fired shots from a handgun. The defendant stated that he dove to the floor while the gunshots fired by Maldonado “hit the next guy.” The defendant pulled his own handgun from his waistband, followed Maldonado to his room, and fired four rounds.
A jury convicted the defendant of murder in the second degree and assault in the first degree. The Supreme Court sentenced the defendant to consecutive terms of imprisonment of 25 years to life, to be followed by five years of postrelease supervision.
Among the defendant’s claims on appeal, he asserts that he was deprived of his right to a fair trial due to prejudicial conduct by spectators in the courtroom. Specifically, several members of Walton’s family, who were seated in relatively close proximity to the jurors, wore T-shirts bearing a likeness of Walton and the words “Remember Leo Walton,” or “Remembering Leo Walton.” The defendant claims that this display was a highly prejudicial, and ultimately successful, attempt to elicit sympathy for Walton and inflame the passions of the jury. The defendant asserts that it was reversible error for the trial court to deny his attorney’s application to minimize any undue prejudice by having the family members cover or remove the T-shirts. Because I agree, I respectfully dissent.
“The constitutional guarantee to due process of law provides criminal defendants with ‘the fundamental right to a fair trial’ ” (People v Henriquez, 3 NY3d 210, 214 [2004], quoting Strickland v Washington, 466 US 668, 684 [1984]). Indeed, the right of the accused to a fair trial, before an impartial jury of his or her peers, at which the verdict is rendered solely on the basis of the evidence admitted without regard to improper or extraneous considerations, is a cornerstone of a just society.
The essential elements of a criminal defendant’s right to a fair trial “are defined primarily by the Sixth Amendment” (People v Henriquez, 3 NY3d at 214), which provides, in part,
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . , and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to *67have the Assistance of Counsel for his defence” (US Const Sixth Amend).
The New York Constitution also grants defendants the fundamental right to a fair trial (see NY Const, art I, § 6).
“Central to the right to a fair trial, guaranteed by the Sixth and Fourteenth Amendments, is the principle that ‘one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial’ ” (Holbrook v Flynn, 475 US 560, 567 [1986], quoting Taylor v Kentucky, 436 US 478, 485 [1978]).
“[C]ertain practices pose such a threat to the ‘fairness of the factfinding process’ that they must be subjected to ‘close judicial scrutiny’ ” (Holbrook v Flynn, 475 US at 568, quoting Estelle v Williams, 425 US 501, 503-504 [1976]).
In a case such as this, the question to be resolved is whether permitting the family members of the deceased to display their “memorial” T-shirts in the courtroom at the trial of the accused “was so inherently prejudicial that [the defendant] was thereby denied his constitutional right to a fair trial” (Holbrook v Flynn, 475 US at 570). “Whenever a courtroom arrangement is challenged as inherently prejudicial. . . , the question must be not whether jurors actually articulated a consciousness of some prejudicial effect, but rather whether ‘an unacceptable risk is presented of impermissible factors coming into play’ ” (id., quoting Estelle v Williams, 425 US at 505; see People v Tohom, 109 AD3d 253, 268 [2013]).
I agree with my colleagues’ pronouncement that
“[i]n a close case, the most prudent course is to err on the side of caution rather than test the outermost bounds of constitutionality, since the minor inconvenience imposed upon spectators by limiting the scope of their conduct cannot reasonably be compared to the importance of providing the accused with his or her right to a trial by a jury unencumbered by the threat of coercive influences.”
Moreover, I agree with my colleagues’ determination that a per se rule compelling reversal in every case involving such a display is not tenable. To draw a parallel, in addressing an*68other fair trial right, that implicated by prejudice to defendants resulting from pre-indictment delay, the United States Supreme Court observed that, “[t]o accommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each case. It would be unwise at this juncture to attempt to forecast our decision in such cases” (United States v Marion, 404 US 307, 325 [1971]). The rejection of a per se rule is logically consistent with the differing results in cases involving in-court displays such as those at issue here (compare People v Thompson, 34 AD3d 852, 853-854 [2006], with People v Levandowski, 8 AD3d 898 [2004]).
I disagree with my colleagues, however, as to the ultimate determination here based on the facts and circumstances of this case.
Following defense counsel’s summation, he requested a sidebar conference. At this conference, defense counsel stated that he observed three of Walton’s family members in the audience wearing the “memorial” T-shirts in view of the jury. Defense counsel requested no more than that the court direct these individuals to change their shirts, asserting that the shirts were an effort to inflame and influence the jury. The People objected to the defense’s request. The court stated that it did not deem the T-shirts to be prejudicial. The court noted that the individuals wearing the shirts had been quiet and orderly, and had not drawn attention to themselves or their shirts. The court described the T-shirts for the record. According to the court, the family members had worn the shirts in the courtroom on several occasions. Observing that defense counsel did not previously object, the court stated,
“I find now it would just be a tactical move on the part of counsel, strategically, to bring attention to it by having these people asked to change or leave the courtroom immediately before his adversary is going to sum up. So I find this to be a disingenuous type of argument at this time. And I am not going to instruct them to do anything.”
Defense counsel disagreed, stating that he did not believe anyone had worn the shirts on previous days in the courtroom. The court responded,
“You’re incorrect, counsel. I am making the record. I’m finding as a matter of fact that one of the *69females has worn this shirt for at least three court dates that I’ve seen her with. And these individuals had these shirts on this morning before the jury came in while counsel was free to walk around the courtroom. They were in plain sight where no one attempted to cover them up. So, counsel, your statement of facts [is] incorrect. Step out.”
After the defendant was convicted and immediately prior to sentencing, the Supreme Court heard defense counsel on the defense motion pursuant to CPL 330.30 to set aside the verdict on the ground, among others, that the T-shirts deprived the defendant of his due process right to a fair trial. Defense counsel acknowledged that members of the deceased’s family were, of course, entitled to appear in open court. However, defense counsel opined that permitting them to wear T-shirts bearing a large image of Walton with the text, “Remember Leo Walton” would “lead[ ] to the jury making a decision based on sympathy and not on the evidence.”
The court denied the defense’s CPL 330.30 motion. With regard to the ground at issue here, the court stated,
“the jury was not inflamed by the simple wearing of the tee-shirts by members of the decedent’s family. They sat in the second row of the audience. I noticed one of the grieving members of the family wearing the shirt for several times.
“I guess now it would be appropriate to make a better record of what the shirt was. It was [a] white tee shirt with a silk screen with a picture of the deceased with some written language on it.
“I had noticed that shirt, couldn’t read what was written on it. It was not flauntily [sic] displayed in front of the jury, nor in any way did any members of the family bring undue attention to it.
“In fact, most of the members of the family had an outer garment on top of the tee-shirt. So it wasn’t even capable of seeing the entire thing.
“When counsel made the objection, I responded and made a record at that time indicating that I saw nothing wrong with those shirts. In addition, they weren’t inflammatory, and a member of the decedent’s family had worn that on prior occasions.”
*70Contrary to the opinion of my colleagues in the majority, I find that the record, set forth above, is more than adequate to conclude that these circumstances deprived the defendant of his fundamental right to a fair trial. Moreover, where the Supreme Court denied defense counsel’s application, characterized the application as strategic and disingenuous, insisted on making its own record of the relevant circumstances, and thereafter terminated the sidebar conference by directing counsel to step out, I am reluctant to fault the defense for failing to make a better record for our review.
On this record, I conclude that the memorial T-shirts worn by several members of the victim’s family during trial, in view of the jury, presented “ ‘an unacceptable risk ... of impermissible factors coming into play’ ” in the jury’s verdict (Holbrook v Flynn, 475 US at 570, quoting Estelle v Williams, 425 US at 505). The Supreme Court stated, in denying defense counsel’s application following his summation, that family members had worn the shirts on several occasions, and that one family member had worn the shirt on at least three court dates. At sentencing, the court stated that it had observed these T-shirts worn by family members “several times.” In asserting that defense counsel could have objected to the T-shirts earlier, the court noted that the family members “had these shirts on this morning before the jury came in while counsel was free to walk around the courtroom. They were in plain sight where no one attempted to cover them up.” Prior to sentencing, the court noted that the family members wearing the T-shirts sat in the second row of the audience during trial. It is undisputed that the T-shirts bore a large image of the deceased, with the words “Remember Leo Walton,” or “Remembering Leo Walton.”
The record demonstrates that the jury was exposed to the T-shirts, perhaps over the course of several days. Moreover, with regard to the content or substance of the message conveyed by the T-shirts, as Justice Souter stated in concurring with the judgment in Carey v Musladin (549 US 70 [2006]), a case involving a similar display,
“one could not seriously deny that allowing spectators at a criminal trial to wear visible buttons with the victim’s photo can raise a risk of improper considerations. The display is no part of the evidence going to guilt or innocence, and the buttons are at once an appeal for sympathy for the victim (and perhaps for those who wear the buttons) and *71a call for some response from those who see them. On the jurors’ part, that expected response could well seem to be a verdict of guilty, and a sympathetic urge to assuage the grief or rage of survivors with a conviction would be the paradigm of improper consideration” {id. at 82-83 [Souter, J., concurring]).
In my opinion, the risk of prejudice to the defendant, the risk that the jury’s verdict would be rendered based, in part, on improper considerations, is too great in this case. I conclude that the facts at issue in this case gave rise to an unacceptable risk that impermissible factors would come into play in the jury’s verdict (see Holbrook v Flynn, 475 US at 570; Estelle v Williams, 425 US at 505).
The Supreme Court’s conclusory pronouncement that “the jury was not inflamed by the simple wearing of the tee-shirts by members of the decedent’s family” is insufficient to allay doubts as to whether the defendant’s fundamental right to a fair trial was properly safeguarded. Of course, the trial judge had no knowledge of whether the jury was or was not affected by the display. Moreover, the issue is “not whether jurors actually articulated a consciousness of some prejudicial effect, but rather whether ‘an unacceptable risk is presented of impermissible factors coming into play’ ” (Holbrook v Flynn, 475 US at 570, quoting Estelle v Williams, 425 US at 505). Additionally, the unacceptable risk of impermissible factors entering into the jury’s determination could hardly be said to be cured by the fact that the victim’s family members were quiet and orderly, and did not “flauntily [sic]” display the shirts.
Because I find the unacceptable risk that improper considerations contributed to the jury’s verdict was too great, and therefore it cannot be said with any certainty that the defendant was afforded his constitutionally guaranteed right to a fair trial, I would reverse the judgment and order a new trial.
Accordingly, I respectfully dissent based on this ground. In all other respects, I agree with my colleagues in the majority.
Balkin, J.P., and Roman, J., concur with Miller, J.; Dickerson, J., dissents and votes to reverse the judgment and order a new trial.Ordered that the judgment is affirmed.