| People v Russell |
| 2008 NY Slip Op 01458 [48 AD3d 900] |
| February 21, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Heath B.Russell, Appellant. |
—[*1] Kathleen B. Hogan, District Attorney, Lake George, for respondent.
Rose, J. Appeal from a judgment of the County Court of Warren County (Berke, J.), renderedOctober 20, 2005, upon a verdict convicting defendant of the crimes of murder in the seconddegree and criminal possession of a weapon in the fourth degree.
After this Court reversed defendant's earlier convictions and remitted the matter for a newjury trial (16 AD3d 776 [2005], lv denied 5 NY3d 809 [2005]), defendant was againconvicted of the crimes of murder in the second degree and criminal possession of a weapon inthe fourth degree, prompting this appeal. Among defendant's challenges to the conduct of hissecond trial is the claim that County Court failed to instruct the jury regarding the definition ofreasonable doubt, burden of proof and the presumption of innocence, as reflected by the absenceof these instructions from the trial transcript. When the People's counsel on the brief called thisomission to the attention of the court reporter who had transcribed the trial proceedings, the lattersubmitted an eight-page "excerpt of jury charge" which he certified to be a transcript of themissing jury instructions. He also submitted a letter explaining that the omission had occurredbecause his stenotype machine lost power during jury instructions and he then prepared thetranscript from the computer disc, apparently without noticing the omission. In his reply brief,defendant notes that the transcript of the jury instructions originally filed flows smoothly andseamlessly from charge to charge. It does not stop in the middle of a word, sentence or charge, asmight be expected if the machine had lost power. He disputes the authenticity of the "excerpt"and asks us to either ignore it or remit the matter to County Court to determine whether the [*2]transcript should be amended to include it. Since defendant haspromptly objected to the inclusion of the "excerpt" in the record, and raised an issue as towhether the instructions recorded in the "excerpt" were given by County Court, we will withholddecision and remit the matter to County Court to settle the record (see People v La Motte,276 AD2d 931, 932 [2000]; People v Nardo, 144 AD2d 884, 885 [1988]).
Cardona, P.J., Peters, Carpinello and Malone Jr., JJ., concur. Ordered that the decision iswithheld, and matter remitted to the County Court of Warren County for further proceedings notinconsistent with this Court's decision.