Opinion
March 6, 1961
Motion by defendant-appellant to vacate judgment of the County Court, Kings County, rendered June 24, 1948, after a jury trial, convicting him of rape in the first degree, and for a new trial. Motion granted. The motion is made on the ground that it is not possible to obtain a transcript of the minutes of the trial, the stenographer being dead. The District Attorney concedes that the transcript is unavailable and cannot be made available. Under the circumstances the court has no alternative other than to reverse said judgment and to order a new trial ( People v. De Wilkowska, 246 App. Div. 285; People v. Keefe, 254 App. Div. 683; People v. Kaplan, 278 App. Div. 665). Nolan, P.J., Ughetta, Christ, Pette and Brennan, JJ., concur.