AD2 order dated July 22, 2015, affirming judgment of conviction. Decision below: 130 A.D.3d 937, 12 NYS 3d 902. Fahey, J., granted leave November 13, 2015.

ISSUE PRESENTED: Whether the trial judge erred in failing to conduct a reconstruction hearing prior to settling the trial transcript by cleaning up the court’s supplemental charge to the jury, without any explanation or basis for the change.

Issue before the Court: Whether Supreme Court abused its discretion by resettling the trial transcript on the People’s motion without holding a reconstruction hearing? 

 

Held: No. “Although better practices could have been observed,” Supreme Court did not abuse its discretion because the court could reliably determine what took place without the necessity for a hearing.  The information available to the trial judge included the reporter’s certification of the corrected transcript, other undisputed portions of the transcript, and the repeated failure of any party to object to what would have been prominent misstatements of the law. 

 

CAL Observes: In separate concurrences, Judge Fahey expressed a preference for reconstruction hearings to avoid any appearance of impropriety; Judge Garcia disagreed.