People v. Glass

• Decision Date: 19 December 1977
• Citation: 401 N.Y.S.2d 189,43 N.Y.2d 283,372 N.E.2d 24
• Parties: , 372 N.E.2d 24 The PEOPLE of the State of New York, Respondent, v. William Alfred GLASS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 189

401 N.Y.S.2d 189

43 N.Y.2d 283, 372 N.E.2d 24

The PEOPLE of the State of New York, Respondent, v. William Alfred GLASS, Appellant.

Court of Appeals of New York.

Dec. 19, 1977.

Edward J. Nowak, Public Defender, for appellant.

Lawrence T. Kurlander, Dist. Atty. (Stephen M. Brent, Rochester, of counsel), for respondent.

OPINION OF THE COURT

FUCHSBERG, Judge.

The defendant was convicted of burglary and grand larceny after a jury trial. Subsequent to the filing of a notice of appeal, it was discovered that the stenographer who recorded the proceedings could not find the untranscribed stenographic notes covering the summations and the Judge's charge to the jury. They have never been found. Defendant's primary contention on this appeal is that he was thus effectively deprived of his "fundamental right" to appellate review (People v. Montgomery, 24 N.Y.2d 130, 132, 299 N.Y.S.2d 156, 159, 247 N.E.2d 130, 132) and therefore is entitled to summary reversal and a new trial.

It is not too long since we have had occasion to point out that, unless minutes "have become unavailable because of any active fault on the part of the People, it does not necessarily follow from the fact that their absence compels resort to a less perfect record, that the right to appeal must be deemed to be frustrated" (People v. Rivera, 39 N.Y.2d 519, 523, 384 N.Y.S.2d 726, 728, 349 N.E.2d 825, 828).

This is not to say that the loss of minutes is not deplorable. Needless to say, to safeguard the right to appeal, practices which assure their preservation must be instituted and enforced. However, the mere fact that minutes are not obtainable does not necessarily mean that alternative methods to provide an adequate record are not available. Though not precisely duplicating the missing minutes, they may suffice to satisfactorily demonstrate whether genuine appealable and reviewable issues do or do not exist. It is only upon an appropriate showing that this cannot be accomplished that a defendant is entitled to automatic reversal (People v. Rivera, supra; see People v. Flynn, 53 A.D.2d 816; People v. Johnson, 53 A.D.2d 589; cf. People v. Fearon, 13 N.Y.2d 59, 242 N.Y.S.2d 33, 192 N.E.2d 8; People v. Strollo, 191 N.Y. 42, 65-68, 83 N.E. 573, 581-583).

The defendant completely failed to indicate that such means were not at hand. He was available to proffer his own recollection; indeed, the record before us reveals that, on a pro se application for leave to appeal, he had in fact exhibited a detailed and sophisticated awareness of what had transpired at his trial, even quoting the language in which he claimed specific alleged errors were committed in the charge and in the prosecutor's summation. Significantly, neither there nor on the appeal before us is there an assertion that exception was taken either to the charge or summation, absent which these claimed errors would ordinarily not be reviewable (see Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 52 L.Ed.2d 203; People v. Patterson, 39 N.Y.2d 288, 294-296, 383 N.Y.S.2d 573, 576-578, 347 N.E.2d 898, 902-903, affd. 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281).

Nor does defendant as much as suggest that he, his trial counsel, the prosecutor, court personnel, others present during trial, or, for that matter, the Trial Judge were not willing and capable of aiding in the reconstruction of a substitute record from which any existing reviewable issues could be presented. Defendant goes no further than to state that inquiry at the Judge's chambers revealed that no written copy of the charge was extant. Moreover, the...