People v. Carney

• Citation: 425 N.Y.S.2d 323,73 A.D.2d 9
• Parties: The PEOPLE of the State of New York, Respondent, v. James CARNEY, Defendant-Appellant.
• Decision Date: 26 February 1980
• Court: New York Supreme Court Appellate Division

Page 323

425 N.Y.S.2d 323

73 A.D.2d 9

The PEOPLE of the State of New York, Respondent, v. James CARNEY, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Feb. 26, 1980.

William H. Roth, New York City, of counsel (William E. Hellerstein, New York City), for defendant-appellant.

Jerrold L. Neugarten, New York City, of counsel (Carol Ethridge Gette, New York City, with him on brief; Robert M. Morgenthau, Dist. Atty.), for respondent.

Before SULLIVAN, J. P., and LUPIANO, SILVERMAN, ROSS and YESAWICH, JJ.

SILVERMAN, Justice:

This is an appeal from a judgment of the Supreme Court, New York County, convicting defendant on his plea of guilty of attempted criminal possession of a weapon (P.L. §§ 110.00/265.05), and sentencing him thereon as a second felony offender to an indeterminate term of imprisonment from 11/2 to 3 years. Execution of the sentence has been stayed pending appeal.

Before the plea of guilty, there had been a motion to suppress physical evidence, a hearing on that proceeding before Justice Ascione of the Supreme Court, and a decision by Justice Ascione denying the motion to suppress. Defendant wishes us to review that denial.

Unfortunately no stenographic record of the suppression hearing was available, and, accordingly, we directed an effort to reconstruct that record. The case is now before us on the record of that attempted reconstruction.

It appears that police officers arrived at the scene of a robbery reported to be "in progress" by the police dispatcher. The owner of the store had just been shot. As one of the police cars was on its way back to the police station, another car came up and sounded its horn and the driver said something to the police officers about two men (one of whom turned out to be the defendant), who were said to have gone into a bar and grill across the street from the scene of the robbery. As a result of that conversation, the police officers went into the bar and grill; the police officers had their guns drawn; they "patted down" two men (one of them the defendant) thus discovering that the defendant had on his person a loaded revolver.

At the reconstruction hearing, the police officer said he had testified that the driver had told him that the two men looked "very suspicious"; and that the driver of the informing car had accompanied the police officers into the bar and pointed out the two men. The police officer was not permitted to state his present recollection of the events but only his recollection of his testimony at the suppression hearing.

The defendant's attorney testified that his recollection was that the officer had testified that he was told by an unidentified individual that the two men who had robbed the liquor store were across the street in the bar and grill; that no description of the men were given; that the officers were not accompanied into the bar by the informant; nor did the informant point out the defendant.

Justice Ascione submitted an affidavit, prepared before the reconstruction hearing, to the effect that the police officers testified that they had received a report that two men with a gun were either standing outside of or going into a particular bar, and that one of them was wearing a jacket of a specific color. The police entered the bar and saw the defendant wearing the described garment. The defendant and the men standing with him were arrested and searched and a hand gun was found on the defendant. Justice Ascione said he had found the testimony of the police officers credible.

In a number of recent criminal appeals we have been confronted with the problem of attempting to reconstruct a record where an adequate stenographic transcript of the hearings in the trial court is not available. "(A) hearing to determine, among other things, the availability of means other than a transcript for the presentation of the appealable and reviewable issues, may be desirable. Such a hearing may also be directed to determining such other matters as the adequacy of the substitute means and the presence of the issues themselves, if any . . . ." People v. Rivera, 39 N.Y.2d 519, 523, 384 N.Y.S.2d 726, 729, 349 N.E.2d 825, 828; see also People v. Glass, 43 N.Y.2d 283, 286, 401 N.Y.S.2d 189, 190, 372 N.E.2d 24, 25. Such hearings have apparently become the practice in efforts to reconstruct a record.

In the present case, the "reconstruction hearing" was held not before Justice Ascione who held the original suppression hearing but before another judge. At that reconstruction hearing, as we have said, the police officer and the defendant's attorney testified as to what the testimony before Justice Ascione had been. The original trial judge, Justice Ascione, was temporarily unavailable and an affidavit was submitted from him to the "reconstruction court" as to his recollection. So far as appears, there was no effort to arrive at an "agreement on the underlying facts and legal issues by counsel, or by counsel and the court . . . ." People v. Rivera, supra, 39 N.Y.2d at 523, 384 N.Y.S.2d at 728, 349 N.E.2d at 827. More importantly, there was no effort made to refresh Justice Ascione's recollection by testimony, conversation, notes, etc., from the other participants in the hearing, nor did Justice Ascione make a final determination as to the record, or take charge of the proceedings. He merely gave his unaided recollection in affidavit form.

Thus we have the transcript of a reconstruction hearing which contains varying recollections of the witnesses as to what took place at the original suppression hearing, with no finding by anyone as to what the testimony was at the suppression hearing. The differences in the recollections of the various witnesses as to what took place at the suppression hearing are important, and some of us think that they may be determinative of the case.

We are thus faced with a basic question of procedure in such reconstructions of the record specifically, who, if anyone, takes charge of the proceedings and who "settles" the record, at least where there is no agreement among the parties or their recollections differ. In my view, so far as possible the final arbiter of the record should be the judge who presided at the original proceeding sought to be reviewed, if he is available. At a minimum, he should take charge of the reconstruction proceeding. In such a proceeding he is not merely, or not at all, a witness; he is the official who certifies to the appellate court if he can what took place before him.

Historically, it was always the trial judge who had the final responsibility for certifying the record. We have grown accustomed in this country to stenographic reporting of proceedings; but there were appeals long before there were verbatim transcripts of testimony. People v. Rivera, supra, 39 N.Y.2d at 523, 384 N.Y.S.2d at 728, 349 N.E.2d at 827. The stenographic transcript is merely an aid to the judge in certifying the record. Of course in the vast majority of cases the parties do not question the stenographic transcript and thus there is no need for the judge to certify the record. But when, as here, the stenographic transcript is unavailable or inaccurate, the trial judge retains the ultimate responsibility for certifying the accuracy of the record.

The statutes and cases leave the ultimate responsibility for settling the record and transcript with the trial judge. See CPLR § 5525(c) and (d); Rules of the Appellate Division, First Department, § 600.5(e). Indeed, even after a judge is no longer in office he may be compelled to settle a...