Opinion
2014-10-3
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.
PRESENT: CENTRA, J.P., CARNI, VALENTINO, and WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of robbery in the third degree (Penal Law § 160.05). Contrary to defendant's contention, he is not entitled to summary reversal of the conviction based upon the People's posttrial loss of the recording of the robbery victim's 911 call that was admitted in evidence at trial ( see People v. Yavru–Sakuk, 98 N.Y.2d 56, 59, 745 N.Y.S.2d 787, 772 N.E.2d 1145). The content of the 911 call, however, is significant to several of the contentions raised on appeal, and the information contained in the missing recording cannot otherwise be obtained from the record on appeal ( cf. People v. Melendez, 71 A.D.3d 530, 531, 896 N.Y.S.2d 354, affd. 16 N.Y.3d 869, 925 N.Y.S.2d 6, 948 N.E.2d 1290; Yavru–Sakuk, 98 N.Y.2d at 61, 745 N.Y.S.2d 787, 772 N.E.2d 1145). Inasmuch as the present record on appeal does not permit us to review those contentions, we hold the case, reserve decision and remit the matter to Supreme Court to conduct a reconstruction hearing with respect to the missing recording ( see People v. Glass, 43 N.Y.2d 283, 286, 401 N.Y.S.2d 189, 372 N.E.2d 24; People v. Lopez, 176 A.D.2d 218, 219, 574 N.Y.S.2d 283; see also People v. Fullen, 118 A.D.3d 1297, 1298, 987 N.Y.S.2d 290).
It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Supreme Court, Monroe County, for further proceedings.