| People v Kings |
| 2012 NY Slip Op 08154 [100 AD3d 1019] |
| November 28, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v JamesKings, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Sholom J. Twersky,and Jill Oziemblewski of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Sullivan, J.),rendered February 4, 2008, convicting him of burglary in the second degree and menacing in thesecond degree, upon a jury verdict, and imposing sentence. By decision and order on motion ofthis Court dated October 14, 2010, the matter was remitted to the Supreme Court, Kings County,for a reconstruction hearing with respect to those proceedings conducted in this matter onOctober 1, 2007, which could not be transcribed, and thereafter to report to this Court with allconvenient speed, and the appeal was held in abeyance. The Supreme Court has now submittedits report.
Ordered that the judgment is affirmed.
On the defendant's appeal from a judgment of conviction, this Court, in a prior decision andorder on motion, remitted the matter to the Supreme Court for a reconstruction hearing withrespect to certain proceedings that could not be transcribed. The defendant now contends that thereconstruction hearing was inadequate to protect his right of appeal. A presumption of validityand regularity attends all judgments of conviction (see People v Williams, 29 NY2d 882[1972]), and that presumption may only be rebutted by substantial evidence to the contrary(see People v Andino, 183 AD2d 834 [1992]; People v Smalls, 116 AD2d 675,676 [1986]; see also People v Glass, 43 NY2d 283, 287 [1977]). Moreover, "unlessminutes 'have become unavailable because of any active fault on the part of the People, it doesnot necessarily follow from the fact that their absence compels resort to a less perfect record, thatthe right to appeal must be deemed to be frustrated' " (People v Glass, 43 NY2d at285-286, quoting People v Rivera, 39 NY2d 519, 523 [1976]). Thus, it is the defendant'sburden to demonstrate that genuine appealable issues exist, and that alternative methods ofproviding an adequate record are not available, before the defendant is entitled to reversal of hisconviction (see People v Andino, 183 AD2d 834 [1992]; People v Smalls, 116AD2d at 676; see also People v Glass, 43 NY2d at 287).
Our review of the reconstructed minutes satisfies us that the hearing justice, who alsopresided at the defendant's trial, adequately reconstructed the missing portions of the record withthe [*2]aid of both the defense counsel and the prosecutor as wellas the court's own notes and other documents. The defendant's speculation that objections mighthave been made in connection with the prosecutor's summation or the jury charge, but that noone was able to recall them, is insufficient to rebut the presumption of regularity in theproceedings. Thus, the defendant has failed to demonstrate that the reconstruction hearing wasinadequate to protect his right of appeal (see People v Breaziel, 246 AD2d 310, 310-311[1998]; People v Andino, 183 AD2d at 834-835; see also People v Mealer, 57NY2d 214, 219 [1982], cert denied 460 US 1024 [1983]; cf. People v Jacobs, 286AD2d 404, 405 [2001]; People v Smith, 248 AD2d 568 [1998]; People vLaracuente, 136 AD2d 742, 743-744 [1988]).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80 [1982]).Florio, J.P., Leventhal, Austin and Roman, JJ., concur.