People v. Coward

• Decision Date: 13 April 2016
• Docket Number: 2005-05208, Ind. No. 27/05.
• Citation: 29 N.Y.S.3d 531,138 A.D.3d 886,2016 N.Y. Slip Op. 02849
• Parties: The PEOPLE, etc., respondent, v. James COWARD, appellant.
• Court: New York Supreme Court — Appellate Division

138 A.D.3d 886

29 N.Y.S.3d 531

2016 N.Y. Slip Op. 02849

The PEOPLE, etc., respondent,

v.James COWARD, appellant.

2005-05208, Ind. No. 27/05.

Supreme Court, Appellate Division, Second Department, New York.

April 13, 2016.

Matthew Muraskin, Port Jefferson, N.Y., for appellant.

Madeline Singas, District Attorney, Mineola, N.Y. (Yael V. Levy and Cody B. Sibell of counsel), for respondent.

L. PRISCILLA HALL, J.P., SHERI S. ROMAN, HECTOR D. LaSALLE and BETSY BARROS, JJ.

Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Kase, J.), rendered May 4, 2005, convicting him of burglary in the second degree, criminal contempt in the first degree (four counts), resisting arrest, and assault in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant's argument that the judgment should be reversed because a portion of the voir dire proceedings was not transcribed is without merit. “ ‘Although we agree that verbatim recordation of the trial proceedings is the better practice, unless waived, the case law makes clear that the absence of a stenographic record does not, per se, require reversal of a defendant's conviction’ ” (People v. Chappelle, 126 A.D.3d 1127, 1128, 4 N.Y.S.3d 760, quoting People v. Jenkins, 90 A.D.3d 1326, 1329, 935 N.Y.S.2d 204 ; see People v. Harrison, 85 N.Y.2d 794, 796, 628 N.Y.S.2d 939, 652 N.E.2d 638 ; People v. Asencia, 280 A.D.2d 678, 721 N.Y.S.2d 105 ). “ ‘Rather, a defendant must show that a request was made that the voir dire proceedings be recorded, the request was denied, and the failure to record the proceedings prejudiced him or her in some manner’ ” (People v. Jenkins, 90 A.D.3d at 1329, 935 N.Y.S.2d 204, quoting People v. Lane, 241 A.D.2d 763, 763, 660 N.Y.S.2d 890 ; see People v. Chappelle, 126 A.D.3d at 1128, 4 N.Y.S.3d 760 ; People v. Asencia, 280 A.D.2d at 679, 721 N.Y.S.2d 105 ). Here, although the Supreme Court's questioning of the prospective jurors was stenographically recorded, the attorneys' ensuing questioning was not. The defendant, however, did not show that he made a request for the continuing voir dire to be recorded, that the Supreme Court denied a request made by him, or that the failure to record the proceedings prejudiced him (see People v. Chappelle, 126 A.D.3d at 1128, 4 N.Y.S.3d 760 ; People v. Asencia, 280 A.D.2d 678, 721 N.Y.S.2d 105 ; People v. Eddins, 247 A.D.2d 548, 669 N.Y.S.2d 605 ). In addition, the defendant never asked for a reconstruction hearing (see People v. Glass, 43 N.Y.2d 283, 401 N.Y.S.2d 189, 372 N.E.2d 24 ; People v. Asencia, 280 A.D.2d at 678, 721 N.Y.S.2d 105 ).

Contrary to the defendant's contention, the sentencing minutes show that the Supreme Court pronounced sentence on each count of the indictment, as required by CPL 380.20 ...