| People v Fullen |
| 2014 NY Slip Op 04309 [118 AD3d 1297] |
| June 13, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vRobert Fullen, Jr., Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (David D. Egan, J.),rendered July 30, 2009. The judgment convicted defendant, upon a jury verdict, of rapein the second degree and criminal sexual act in the second degree.
It is hereby ordered that the case is held, the decision is reserved and the matter isremitted to Supreme Court, Monroe County, for further proceedings in accordance withthe following memorandum: On appeal from a judgment convicting him of rape in thesecond degree (Penal Law § 130.30 [1]) and criminal sexual act in thesecond degree (§ 130.45 [1]), defendant contends that Supreme Courtcommitted reversible error in denying him access to the victim's psychiatric records.Those records, which the court reviewed in camera, have not been included in the recordon appeal. Inasmuch as the present record on appeal does not permit us to reviewdefendant's contention, we hold the case, reserve decision and remit the matter toSupreme Court to conduct a reconstruction hearing with respect to the missing records(see generally People v Yavru-Sakuk, 98 NY2d 56, 60 [2002]).Present—Centra, J.P., Fahey, Peradotto, Lindley and Valentino, JJ.