Opinion
8 KA 18-01114
02-11-2021
The PEOPLE of the State of New York, Respondent, v. Joseph A. MEYERS, Defendant-Appellant.
THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT. BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF COUNSEL), FOR DEFENDANT-APPELLANT.
BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CENTRA, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Steuben County Court for further proceedings in accordance with the following memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, two counts of arson in the first degree ( Penal Law § 150.20 [1] [a] [i], [ii] ), one count of murder in the second degree (§ 125.25 [3]), and one count of murder in the first degree (§ 125.27 [1] [a] [vii]; [b]). Defendant contends, and the People correctly concede, that missing and otherwise defective transcripts from the trial preclude appellate review of defendant's conviction. Indeed, the present state of the record on appeal is "deplorable" ( People v. Glass , 43 N.Y.2d 283, 286, 401 N.Y.S.2d 189, 372 N.E.2d 24 [1977] ) inasmuch as it is missing, inter alia, three days of jury selection, opening statements, summations, final jury instructions, County Court's handling of a jury note, and the verdict. In addition, the transcription of the testimony of some of the witnesses includes irregularities such as notations stating "omitted," "untranscribable," and "blah, blah," and unintelligible strings of characters that appear to be in code. We reject defendant's contention, however, that summary reversal and a new trial is the appropriate remedy at this point. The "loss of reporter's minutes is rarely sufficient reason in itself for reversing a conviction" ( People v. Parris , 4 N.Y.3d 41, 44, 790 N.Y.S.2d 421, 823 N.E.2d 827 [2004], rearg denied 4 N.Y.3d 847, 797 N.Y.S.2d 423, 830 N.E.2d 322 [2005] ). The Court of Appeals has held that "the right of a defendant to a fair appeal, or for that matter a fair trial, does not necessarily guarantee him [or her] a perfect trial or a perfect appeal" ( People v. Rivera , 39 N.Y.2d 519, 523, 384 N.Y.S.2d 726, 349 N.E.2d 825 [1976] ). "To overcome the presumption of regularity, a defendant must show not only that minutes are missing, but also ‘that there were inadequate means from which it could be determined whether appealable and reviewable issues were present’ " ( Parris , 4 N.Y.3d at 46, 790 N.Y.S.2d 421, 823 N.E.2d 827, quoting Glass , 43 N.Y.2d at 287, 401 N.Y.S.2d 189, 372 N.E.2d 24 ). It is only when a defendant shows that a reconstruction is not possible that a defendant is entitled to summary reversal and a new trial (see Glass , 43 N.Y.2d at 286, 401 N.Y.S.2d 189, 372 N.E.2d 24 ; People v. Kings , 100 A.D.3d 1019, 1019, 954 N.Y.S.2d 475 [2d Dept. 2012], lv denied 20 N.Y.3d 1062, 962 N.Y.S.2d 613, 985 N.E.2d 923 [2013] ; People v. Andino , 183 A.D.2d 834, 834, 584 N.Y.S.2d 78 [2d Dept. 1992], lv denied 80 N.Y.2d 901, 588 N.Y.S.2d 826, 602 N.E.2d 234 [1992] ).
Here, we conclude that defendant failed to establish that alternative means to provide an adequate record are not available (see Glass , 43 N.Y.2d at 286-287, 401 N.Y.S.2d 189, 372 N.E.2d 24 ). There is no indication that defendant's former attorneys could not participate in a reconstruction hearing, despite the fact that one of them is now employed by the District Attorney's Office. There is also no indication that the now-retired trial judge could not participate as well (see Parris , 4 N.Y.3d at 47, 790 N.Y.S.2d 421, 823 N.E.2d 827 ; People v .Bryant , 159 A.D.2d 962, 962, 552 N.Y.S.2d 778 [4th Dept. 1990] ).
We therefore hold the case, reserve decision, and remit the matter to County Court to conduct a reconstruction hearing with respect to the missing and irregular transcripts.