People v. Harrison

• Decision Date: 13 June 1995
• Citation: 628 N.Y.S.2d 939,652 N.E.2d 638,85 N.Y.2d 794
• Parties: , 652 N.E.2d 638 The PEOPLE of the State of New York, Respondent, v. Malik HARRISON, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 939

628 N.Y.S.2d 939

85 N.Y.2d 794, 652 N.E.2d 638

The PEOPLE of the State of New York, Respondent, v. Malik HARRISON, Appellant.

Court of Appeals of New York.

June 13, 1995.

[85 N.Y.2d 795] Frances A. Gallagher, and Philip L. Weinstein, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty. of New York County, New York City (Ellen Sue Handman and Mark Dwyer of counsel), for respondent.

OPINION OF THE COURT

SIMONS, Justice.

Defendant has been convicted of criminal sale of a controlled substance in the third degree and sentenced to a term of imprisonment. He seeks reversal because the trial court refused to order the stenographer to record portions of the jury voir dire despite defense counsel's repeated requests that a record be made of her objections to several statements of the prosecutor and the court. Defendant contends that the court's actions denied him effective appellate review. We agree and conclude that the appropriate remedy is reversal and a new trial.

A defendant has a fundamental right to appeal a criminal conviction (see, People v. Montgomery, 24 N.Y.2d 130, 132, 299 N.Y.S.2d 156, 247 N.E.2d 130; see also, CPL 450.10). To facilitate that right, section 295 of the Judiciary Law requires that full stenographic notes be taken of all trial proceedings and, on request of counsel during a jury trial, "each and every remark or comment of [the] judge * * * and every exception taken to any such ruling [or] decision" must be recorded. The People acknowledge that Judiciary Law § 295 applies to criminal proceedings and that the voir dire of prospective jurors is a part of the trial within the meaning of the statute. They maintain, however, that defendant was not prejudiced here because the substance of defendant's objections, though not recorded, is discernable from the record and that it is clear that the challenged remarks do not provide grounds for reversal. Alternatively, the People claim that the most defendant is entitled to is a remand for a hearing to reconstruct a record for appellate review.

Though the directions contained in Judiciary Law § 295 would appear absolute, the absence of a stenographic record does not, per se, require reversal of defendant's conviction (see, Williams v. Norman, 34 N.Y.2d 626, 355 N.Y.S.2d 368, 311 N.E.2d 503). Verbatim recordation of the proceedings is the "better practice", unless waived, but we have recognized that reversal is not required if defendant is not prejudiced by the absence of a stenographic record (see, People v. Fearon, 13 N.Y.2d 59, 61, 242 N.Y.S.2d 33, 192 N.E.2d 8). The record has been deemed sufficient if those portions of the proceedings objected to have been transcribed or agreed upon by counsel (id.). Moreover, if the record can be accurately reconstructed no prejudice results from its loss (see, People v. Glass, 43 N.Y.2d 283, 286, 401 N.Y.S.2d 189, 372 N.E.2d 24; cf., People v. Rivera, 39 N.Y.2d 519, 523, 384 N.Y.S.2d 726, 349 N.E.2d 825). There is a presumption of regularity which attaches to a judicial proceeding (see, People v. Glass, supra, at 287, 401 N.Y.S.2d 189, 372 N.E.2d 24; cf., People v. Taylor, 73 N.Y.2d 683, 543 N.Y.S.2d 357, 541 N.E.2d 386) and the unavailability of a stenographic record, either because it has been lost or inadvertently destroyed, standing by itself, will not rebut that presumption (see, e.g., People v. Glass, supra ). However, when a record cannot be reconstructed because of the lapse of time, the unavailability of the participants in the proceeding or some similar circumstance, there must be a reversal (see, People v. Rivera, supra; see also, People v. Scott, 70 N.Y.2d 420, 426, 522 N.Y.S.2d 94, 516 N.E.2d 1208; People v. Taylor, supra).

The absence of a record in this case is attributable to the court's failure to comply with the requirements of section 295 of the Judiciary Law. Here, the first round of jury selection proceeded without a record of the objections made by defense counsel. After luncheon recess, and prior to the examination of the second panel, defense counsel noted for the record that she had requested earlier that the voir dire be recorded and that the court had refused her request. She noted further that during the first round of jury selection she had objected to the prosecutor's comments to the jury "a number of times," "[m]aybe * * * six or seven at a time," and had asked that her objections be recorded and that the court had denied her request. She stated her belief that the prosecutor's statements contained erroneous commentary on the law and moved for a mistrial. The court denied the motion. Counsel then...