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APPEAL HELD IN RESERVE AND THE MATTER SENT BACK FOR A RECONSTRUCTION HEARING TO DETERMINE WHETHER THE TRIAL JUDGE APPRISED DEFENSE COUNSEL OF THE ENTIRE CONTENTS OF A JURY NOTE (FOURTH DEPT).

The Fourth Department reserved decision and sent the matter back for a reconstruction hearing concerning whether the trial judge apprised defense counsel of the entire contents of a jury note. The court reporter submitted an affidavit indicating the transcript is incomplete and the judge's remarks about the jury note were inadvertently omitted:

… [T]he People stipulated to the record without seeking to amend the transcript (see CPLR 5525 [c] [1]; see also 22 NYCRR former 1000.4 [a] [1] [ii]), rely upon an affidavit that does not constitute a part of the underlying prosecution … , and have not submitted a supplemental transcript certified by the court reporter that would fall within the parties' stipulation to submit the trial transcripts to this Court … . It is well established, however, that “[p]arties to an appeal are entitled to have that record show the facts as they really happened at trial, and should not be prejudiced by an error or omission of the stenographer”… . Thus, under the circumstances of this case, we take judicial notice of our own records, i.e., the court reporter's affidavit submitted in opposition to defendant's motion for a writ of error coram nobis … .

In her affidavit, the court reporter averred that, although the transcript indicates that the court stated that the jury requested readbacks of the testimony of only four witnesses, the transcript inadvertently omits from the court's recitation of the note the jury's request for a readback of the testimony of a fifth witness—the medical examiner. The court reporter's affidavit thus indicates that a stenographic error may have resulted in a transcript that does not accurately reflect whether the court read the entire content of the note verbatim in open court prior to responding to the jury. We conclude that the alleged error in the transcript of the court's on-the-record reading of the note should be subject to a reconstruction hearing because “[t]he trial judge is the final arbiter of the record' certified to the appellate courts” … . People v Timmons, 2018 NY Slip Op 06644, Fourth Dept 10-5-18

CRIMINAL LAW (APPEAL HELD IN RESERVE AND THE MATTER SENT BACK FOR A RECONSTRUCTION HEARING TO DETERMINE WHETHER THE TRIAL JUDGE APPRISED DEFENSE COUNSEL OF THE ENTIRE CONTENTS OF A JURY NOTE (FOURTH DEPT))/JURY NOTES (CRIMINAL LAW, APPEAL HELD IN RESERVE AND THE MATTER SENT BACK FOR A RECONSTRUCTION HEARING TO DETERMINE WHETHER THE TRIAL JUDGE APPRISED DEFENSE COUNSEL OF THE ENTIRE CONTENTS OF A JURY NOTE (FOURTH DEPT))/RECONSTRUCTION HEARING (CRIMINAL LAW, JURY NOTES, APPEAL HELD IN RESERVE AND THE MATTER SENT BACK FOR A RECONSTRUCTION HEARING TO DETERMINE WHETHER THE TRIAL JUDGE APPRISED DEFENSE COUNSEL OF THE ENTIRE CONTENTS OF A JURY NOTE (FOURTH DEPT))/APPEALS, CRIMINAL LAW, APPEAL HELD IN RESERVE AND THE MATTER SENT BACK FOR A RECONSTRUCTION HEARING TO DETERMINE WHETHER THE TRIAL JUDGE APPRISED DEFENSE COUNSEL OF THE ENTIRE CONTENTS OF A JURY NOTE (FOURTH DEPT))

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