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THE TRANSCRIBED RECORD IS WOEFULLY INCOMPLETE; DEFENDANT DID NOT DEMONSTRATE THE RECORD COULD NOT BE RECONSTRUCTED; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, holding the case and reserving decision, remitted the matter for reconstruction of the record which was missing several vital parts:

… [M]issing and otherwise defective transcripts from the trial preclude appellate review of defendant’s conviction. Indeed, the present state of the record on appeal is “deplorable” … inasmuch as it is missing, inter alia, three days of jury selection, opening statements, summations, final jury instructions, County Court’s handling of a jury note, and the verdict. In addition, the transcription of the testimony of some of the witnesses includes irregularities such as notations stating “omitted,” “untranscribable,” and “blah, blah,” and unintelligible strings of characters that appear to be in code. We reject defendant’s contention, however, that summary reversal and a new trial is the appropriate remedy at this point. The “loss of reporter’s minutes is rarely sufficient reason in itself for reversing a conviction” … . The Court of Appeals has held that “the right of a defendant to a fair appeal, or for that matter a fair trial, does not necessarily guarantee him [or her] a perfect trial or a perfect appeal” … . “To overcome the presumption of regularity, a defendant must show not only that minutes are missing, but also ‘that there were inadequate means from which it could be determined whether appealable and reviewable issues were present’ ” … . It is only when a defendant shows that a reconstruction is not possible that a defendant is entitled to summary reversal and a new trial … .

Here, we conclude that defendant failed to establish that alternative means to provide an adequate record are not available … .There is no indication that defendant’s former attorneys could not participate in a reconstruction hearing, despite the fact that one of them is now employed by the District Attorney’s Office. There is also no indication that the now-retired trial judge could not participate as well … . People v Meyers, 2021 NY Slip Op 00919, Fourth Dept 2-11-21

 

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