People v. Gonzalez
| Decision Date | 01 June 1992 |
| Citation | 184 A.D.2d 525,584 N.Y.S.2d 180 |
| Parties | The PEOPLE, etc., Respondent, v. Robert GONZALEZ, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Philip L. Weinstein, New York City (Kevin Casey, of counsel), for appellant.
Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen, Victor Barall and Ruth E. Ross, of counsel), for respondent.
Before LAWRENCE, J.P., and EIBER, O'BRIEN and COPERTINO, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (De Lury, J.), rendered August 30, 1983, convicting him of murder in the second degree (three counts), and robbery in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress statements made by him to law enforcement authorities.
ORDERED that the judgment is affirmed.
We reject the defendant's contention that his rights to the effective assistance of counsel, due process, equal protection, and a speedy appeal were violated by the loss or destruction of portions of his trial transcript. It is well established that the mere unavailability of a portion of a trial transcript does not require reversal and that the defendant must set forth the nature of the issues that would have been raised on appeal had the minutes been available (see, People v. Glass, 43 N.Y.2d 283, 401 N.Y.S.2d 189, 372 N.E.2d 24; People v. Rivera, 39 N.Y.2d 519, 384 N.Y.S.2d 726, 349 N.E.2d 825; People v. Cordero, 175 A.D.2d 809, 573 N.Y.S.2d 289 [2d Dept.]). A reconstruction hearing took place in the instant case, and we find that it was successful in reconstructing an adequate record from which it could be determined whether genuine appealable and reviewable issues existed (see, People v. Glass, supra ). Since most of the delay which may have led to the destruction or loss of the minutes was the fault of the defendant, reversal is not required (see Simmons v. Reynolds, 2nd Cir., 898 F.2d 865; Brooks v. Jones, 2nd Cir., 875 F.2d 30).
We reject the defendant's contention that the hearing court should have suppressed his statements to law enforcement authorities. Resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the suppression court, which saw and heard the witnesses (see, People v. Gaimari, 176 N.Y. 84, 94, 68 N.E. 112). Its...
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