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A MISSING JURY-NOTE-RESPONSE TRANSCRIPT DOES NOT WARRANT REVERSAL UNLESS THE DEFENDANT SHOWS ENTITLEMENT TO A RECONSTRUCTION HEARING AND THE TRANSCRIPT CANNOT BE RECONSTRUCTED, NOT THE CASE HERE; WHEN A MOTION TO VACATE A CONVICTION ON INEFFECTIVE-ASSISTANCE GROUNDS TURNS ON FACTS OUTSIDE THE RECORD, DENIAL WITHOUT A HEARING IS AN ABUSE OF DISCRETION (CT APP).

The Court of Appeals, remitting the matter for a hearing, in a full-fledged opinion by Judge Singas, determined (1) the absence of the transcript of a response to a jury note did not require reversal, and (2) defendant’s motion to vacate his conviction on ineffective-assistance grounds should not have been denied without a hearing:

Re: missing response-to-a-jury-note transcript:

… [A] missing transcript alone does not entitle a defendant to the extreme remedy of vacatur, but may entitle a defendant to a reconstruction hearing … . To be sure, if a defendant shows that they are entitled to a reconstruction hearing, and that the missing transcript at issue “cannot be reconstructed . . . , there must be a reversal” … . But defendant has not made that showing. Thus, the missing transcript does not warrant reversing defendant’s conviction.

Re: motion to vacate conviction, ineffective assistance:

Where a defendant moves to vacate their conviction under CPL 440.10, the court “must” decide “whether the motion is determinable without a hearing to resolve questions of fact” … . The court “may deny” the motion summarily under enumerated circumstances, including where purported facts essential to the motion are unsupported by “sworn allegations” that “substantiat[e] or tend[ ] to substantiate” those facts … , or where such a fact “is contradicted by a court record or other official document” and “there is no reasonable possibility that [the] allegation is true” … . We review a CPL article 440 motion’s summary denial for abuse of discretion … .

Defendant’s ineffective assistance claim cannot be decided without first resolving questions of fact. Defense counsel’s affirmation, together with the trial record, suggest that counsel may have lacked a strategic or other legitimate basis for one or more of his actions relating to eyewitness identification testimony at the heart of the People’s proof. Whether counsel in fact had such a basis for his conduct turns on factual information outside the present record that should be developed at an evidentiary hearing. People v Salas, 2025 NY Slip Op 03603, CtApp 6-12-25

Practice Point: A missing jury-note-response transcript does not require reversal unless the defendant shows entitlement to a reconstruction hearing and the transcript cannot be reconstructed.​

Practice Point: Where a motion to vacate the conviction on ineffective-assistance grounds turns on facts outside the record, here the strategic or other legitimate basis for counsel’s actions, it is an abuse of discretion to deny the motion without a hearing.

 

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