Opinion
1319 KA 10-01432.
12-23-2015
The PEOPLE of the State of New York, Respondent, v. Charles M. THOMAS, Sr., Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (David R. Juergens of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of Counsel), for Respondent.
Opinion
MEMORANDUM:
We held this case and remitted the matter to Supreme Court to conduct a reconstruction hearing with respect to the lost recording of a 911 call (People v. Thomas, 121 A.D.3d 1536, 993 N.Y.S.2d 607). At the hearing, the People called only one witness, a police officer who had only a “vague” recollection of what was said by the complainant on the 911 call. We agree with defendant that the People were unable to meet their burden of establishing the content of the 911 call, and thus meaningful appellate review of defendant's contentions is not possible (see People v. Hasenflue, 48 A.D.3d 888, 890, 851 N.Y.S.2d 674, lv. denied 11 N.Y.3d 789, 866 N.Y.S.2d 615, 896 N.E.2d 101; People v. Ha, 18 A.D.3d 1068, 1068, 797 N.Y.S.2d 573, lv. denied 5 N.Y.3d 788, 801 N.Y.S.2d 808, 835 N.E.2d 668; People v. Jacobs, 286 A.D.2d 404, 405, 729 N.Y.S.2d 189; see generally People v. Yavru–Sakuk, 98 N.Y.2d 56, 59, 745 N.Y.S.2d 787, 772 N.E.2d 1145). We therefore reverse the judgment and grant a new trial on count one of the indictment.
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted on count one of the indictment.
CENTRA, J.P., CARNI, VALENTINO, and WHALEN, JJ., concur.