Opinion
October 2, 1984
Motion for summary reversal granted, the judgment reversed, and the matter remanded to Supreme Court, Bronx County, for a new trial.
Concur — Kupferman, J.P., Sandler and Kassal, JJ.
In my view, it is inappropriate to reverse the conviction and remand this case for a new trial because the trial minutes have been lost, without first having a reconstruction hearing. Defendant was convicted after a seven-or eight-day trial in July, 1981 of criminal possession of a weapon, third degree, and reckless endangerment, first degree, and sentenced to concurrent terms of imprisonment of 1 1/2 years to 4 1/2 years and is currently on parole. His appeal has not been perfected and it appears that the trial minutes are "hopelessly lost". Defendant seeks summary reversal and dismissal of the indictment since without the minutes the appeal cannot be perfected. The People agree to the reversal but would have a retrial instead of a dismissal. Both sides agree that a reconstruction hearing would pose difficulties because of the lapse of time. No adequate showing is made however that a reconstruction hearing would be unavailing. Indeed the Trial Judge is still available and may well have notes that would adequately facilitate the reconstruction. Should reconstruction prove to be impossible, in fact, resort can then be had to a retrial.