People v. Shire

• Decision Date: 03 November 2005
• Docket Number: 79459.
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. IVORY SHIRE, Appellant.
• Court: New York Supreme Court — Appellate Division

23 A.D.3d 709

803 N.Y.S.2d 309

2005 NY Slip Op 08159

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. IVORY SHIRE, Appellant.

79459.

Appellate Division of the Supreme Court of the State of New York, Third Department.

November 3, 2005.

Appeal from a judgment of the County Court of Clinton County (McGill, J.), rendered February 6, 1997, upon a verdict convicting defendant of the crimes of criminal sale of a controlled substance in the third degree and conspiracy in the fourth degree.

Rose, J.

Following a 1996 jury trial, defendant was convicted of criminal sale of a controlled substance in the third degree and conspiracy in the fourth degree, and was sentenced as a persistent felony offender to an aggregate prison term of 15 years to life. Because the court reporters who recorded the proceedings were unavailable to transcribe their minutes, the record for defendant's appeal was delayed, the efforts of another court reporter were required and the resulting transcription is admittedly incomplete. County Court then held a reconstruction hearing, primarily to reconstruct the record of the Huntley hearing and the sentencing proceeding. At the reconstruction hearing, the People produced an apparently complete but uncertified copy of the Huntley hearing transcript obtained from defendant's trial counsel. In reconstructing the sentencing minutes, County Court relied upon defendant's certificates of convictions, its own notes, an earlier persistent felony offender statement and the presentence report. Defendant now appeals, arguing that the record is too incomplete to allow meaningful appellate review.

While "the State must provide a record of trial sufficient to enable a defendant to present reviewable issues on appeal" (People v Mealer, 57 NY2d 214, 219 [1982], cert denied 460 US 1024 [1983]), the absence of a complete trial transcript does not, by itself, require reversal (see People v Parris, 4 NY3d 41, 46 [2004]; People v La Motte, 276 AD2d 931, 932 [2000]). Rather, a defendant must overcome the presumption of regularity by showing that there were inadequate substitute means for determining the presence of appealable issues and permitting their intelligent appellate review (see People v Parris, supra at 46; People v La Motte, supra at 932).

Despite the omissions cited by defendant, the transcriptions in the record here are sufficient for appellate review. For example, from the portion of the transcript of the Sandoval hearing that was able to be transcribed, we can discern which prior convictions were at issue and the reasoning behind County Court's ruling, and find no basis for reversal (see generally People v Typhair, 12 AD3d 832, 833 [2004], lv denied 4 NY3d 803 [2005]). Nor are we persuaded that the uncertified Huntley hearing transcript is inaccurate, inasmuch as defendant made no such objection and offered no evidence to substantiate this claim (see People v Parris, supra at 46; People v Morgan, 214 AD2d 809, 809-810 [1995], lv denied 86 NY2d 783 [1995]). Since County Court found the uncertified copy to be sufficiently accurate to serve as a transcript, no statement in lieu of the transcript was required by CPLR 5525 (d).

Defendant also maintains that the testimony of the People's...