THE STENOGRAPHER DELIBERATELY FAILED TO TRANSCRIBE PORTIONS OF THE TRIAL TESTIMONY, INSTEAD RECORDING “BLAH, BLAH, BLAH,” “OMITTED,” AND “UNTRANSCIBABLE;” THE APPELLATE DIVISION PROPERLY SENT THE MATTER BACK FOR A RECONSTRUCTION HEARING AND THE RECONSTRUCTED TESTIMONY WAS SUFFICIENT TO PROTECT DEFENDANT’S RIGHT TO AN APPEAL (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Wilson, affirming the Appellate Division, determined (1) the Appellate Division, holding the appeal in abeyance, properly sent the matter back for a reconstruction hearing because the seriously flawed trial transcript omitted testimony, and (2) the reconstruction of the transcript was adequate to allow appellate review. Defendant’s conviction was affirmed:

During the trial of Joseph A. Meyers, the primary stenographer failed to capture substantial portions of the proceedings and frequently recorded “blah blah blah,” “blah blah,” “omitted,” “untranscribable” or undecipherable characters instead of the words actually spoken. Those transgressions by the court reporter were first discovered during the pendency of Mr. Meyers’s appeal. The Appellate Division ordered a reconstruction hearing, at which Supreme Court took testimony from the trial judge who heard the case, the attorneys who tried it and court clerks who helped administer it, and also supplemented the record with the extensive notes the judge took during the trial. Although Supreme Court did not, at the conclusion of the reconstruction hearing, identify the contents of the reconstructed record, the Appellate Division affirmed Mr. Meyers’s convictions based on the original trial record as supplemented by the proof established at the reconstruction hearing. The core issues before us are: (1) whether the Appellate Division appropriately ordered a reconstruction hearing instead of summarily reversing Mr. Meyers’s criminal convictions and ordering a new trial; and (2) if the Appellate Division properly required a reconstruction hearing, whether that hearing produced a record sufficient to protect Mr. Meyers’s right to an appeal that comported with due process. Although the transcript prepared by the court reporter at trial is utterly inexcusable, we affirm the Appellate Division’s holding that, on the unique facts of this case, the results of the reconstruction hearing were sufficient to protect Mr. Meyers’s right to an appeal. People v Meyers, 2026 NY Slip Op 03261, CtApp 5-26-26

Practice Point: Consult this opinion for insight into how trial testimony omitted from the transcribed record can be reconstructed such that defendant’s right to an appeal is protected.