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Failure to Transcribe Portion of Voir Dire Not Reversible Error—Criteria Explained

The Third Department determined the failure to transcribe a portion of the voir dire did not require reversal (because the defendant did not request that it be transcribed and could show no prejudice).  The court explained the relevant analysis:

“Although we agree that verbatim recordation of the trial proceedings is the better practice, unless waived, the case law makes clear that the absence of a stenographic record does not, per se, require reversal of a defendant’s conviction” … . “‘Rather, a defendant must show that a request was made that the voir dire proceedings be recorded, the request was denied, and the failure to record the proceedings prejudiced him or her in some manner'” … . Here, voir dire was recorded, except one portion during which each counsel exercised peremptory challenges to the first panel of jurors. However, defendant did not request that this part (or any part) of voir dire be recorded … and, importantly, he does not assert that an incorrect ruling or any prejudicial error occurred during the omitted portion … . People v Chappelle, 2015 NY Slip Op 105486, 3rd Dept 3-12-15

 

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Case Remitted for Determination Whether Defendant Should Be Adjudicated a Youthful Offender/Record Insufficient to Determine Whether Court Erred In Not Disclosing to the Defendant the Written Submissions of the Victims Which Were Reviewed by the Court–Case Remitted to Make an Adequate Record for Review

The Fourth Department determined County Court erred in failing to determine whether defendant should be adjudicated a youthful offender.  The Fourth Department further determined the record was not sufficient for consideration of defendant’s argument County Court erred when it refused to allow defendant to see the written submissions to the judge made by the victims. The case was remitted for consideration of whether the defendant should be adjudicated a youthful offender and to create a record of the written submissions and the reasons defendant was refused access to them.  People v Minemier, 2015 NY Slip Op 00171, 4th Dept 1-2-15

 

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The Failure of the Record to Indicate Whether Notes from the Jury Were Properly Addressed by the Court Constitutes a “Mode of Proceedings” Error

The Court of Appeals, in a full-fledged opinion by Judge Graffeo, over a partial dissent, determined the failure of the record to indicate whether notes from the jury were properly addressed by the court (pursuant to People v O’Rama, 88 NY2d 270) constituted “mode of proceedings” errors requiring reversal in the absence of preservation:

Although not every violation of CPL 310.30 is immune from normal preservation principles …, a failure to apprise counsel about the specific contents of a substantive note from a deliberating jury violates the fundamental tenants of CPL 310.30 and qualifies as a mode of proceedings error … . The record therefore must indicate compliance with adequate procedures under O’Rama because reviewing courts “cannot assume” that the proper procedure was utilized when the record is devoid of information as to how jury notes were handled … . The “presumption of regularity” … cannot salvage an … error of this nature … . People v Silva, 2014 NY Slip Op 08215, CtApp 11-24-14

 

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Loss of Small Portion of Stenographic Record Did Not Require Reversal

The First Department noted that the loss of some of the stenographic minutes of a trial did not require reversal. The trial court had conducted a reconstruction hearing:

The loss of a relatively small portion of the stenographic record does not require reversal of defendants’ convictions … . The court conducted a reconstruction hearing at which various participants in the trial presented their recollections, to the extent possible, of the brief portions of the trial for which minutes are not available. When viewed in light of the presumption of regularity (id. at 796), the facts adduced at the reconstruction hearing regarding the missing pages support an inference that the missing minutes would not have revealed any significant appellate issues. People v Negron, 2014 NY Slip Op 03752, 1st Dept 5-22-14

 

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