reconstruction hearing in New York

2026Although the People bear the burden of production during a reconstruction hearing—that is, the burden to provide the evidence to reconstruct the record—the burden to overcome the presumption of regularity rests with the defendant ( Parris , 4 NY3d at 46).

2026Although the People bear the burden of production during a reconstruction hearing—that is, the burden to provide the evidence to reconstruct the record—the burden to overcome the presumption of regularity rests with the defendant ( Parris , 4 NY3d at 46 ).

2022Indeed, the purpose of a reconstruction hearing is not to create a new transcript, but rather to determine "whether any significant issues arose during the voir dire and were preserved for appellate review" ( People v Parris , 4 NY3d 41, 47 [2004]; see People v Glass , 43 NY2d 283, 286 [1977]; see generally People v Rivera , 39 NY2d 519, 523 [1976]).

2022Indeed, the purpose of a reconstruction hearing is not to create a new transcript, but rather to determine "whether any significant issues arose during the voir dire and were preserved for appellate review" ( People v Parris , 4 NY3d 41, 47 [2004]; see People v Glass , 43 NY2d 283, 286 [1977]; see generally People v Rivera , 39 NY2d 519, 523 [1976]).

2025In appropriate circumstances, a court "may hold a reconstruction hearing with the parties[ and] any witnesses or evidence the court deems helpful" ( Bethune , 29 NY3d at 541 ; see People v Velasquez , 1 NY3d 44, 49 [2003]).

2018In addition, in responding to the jury note at issue, which sought guidance as to whether to continue deliberations, the court told the jury that "we as a group would like you to keep working." Under these circumstances, there is a significant ambiguity in the record before us and a reconstruction hearing is warranted ( see People v Velasquez , 1 NY3d 44, 49 [2003]).

2025In sum, bearing [*3]in mind that the reconstruction hearing "was not a hearing to determine defendant's guilt, but rather one to 'reconstruct . . . the record,' " we "discern no error with the manner in which [the court] conducted the reconstruction hearing" that would constitute a violation of defendant's right to due process and warrant a new hearing ( Chappell , 198 AD3d at 1019 ; see generally Alomar , 93 NY2d at 245-246 ).

2025Given the foregoing, and contrary to defendant's assertion that the People failed to discharge their burden of reconstructing the facts of the January 16, 2013 plea proceeding given the "irregularities" of this case, "we discern no error with the manner in which County Court conducted the reconstruction hearing as it was not a hearing to determine defendant's guilt, but rather one to 'reconstruct and settle the record' " ( People v Chappell , 198 AD3d 1018, 1019 [3d Dept 2021], lv denied 37 NY3d 1160 [2022], quoting People v Alomar , 93 NY2d 239, 247 [1999]; see People v Rowles , 188 AD2d 926,

2020There, as here, the matter was remitted for a reconstruction hearing in which the trial judge testified to having no independent memory of the circumstances but that, according to standard procedure, the proceeding would have been reconvened and counsel notified had the note's existence been known ( id. at 816).

2018Indeed, in People v Cruz , we heard an appeal on an O'Rama issue after a reconstruction hearing had been held—a procedure that the presiding Chief Judge characterized as a "very useful exercise" ( 14 NY3d 814, 818 [2010, Lippman, Ch.

2025Nor does the record support the dissent's related conclusion that the People's efforts at the reconstruction hearing evinced a lack of diligence that "hindered effective reconstruction" of the record ( cf. Rivera , 39 NY2d at 525 ; see generally Parris , 4 NY3d at 48-49 ).

2025Thus, the failure of the reconstruction hearing to produce a sufficient record for appellate review is not solely premised on a cause "beyond the control of either party" ( People v Rivera , 39 NY2d 519, 525 [1976]).

2014We therefore hold the case, reserve decision and remit the matter to Supreme Court for a reconstruction hearing on that issue (see Kahley, 105 AD3d at 1324-1325 ; see generally People v Cruz, 42 AD3d 901, 901 [2007]; People v Russo, 283 AD2d 910, 910-911 [2001], lv dismissed 96 NY2d 867 [2001]).

2014We therefore hold the case, reserve decision and remit the matter to Supreme Court for a reconstruction hearing on that issue (see Kahley, 105 AD3d at 1324-1325 ; see generally People v Cruz, 42 AD3d 901, 901 [2007]; People v Russo, 283 AD2d 910, 910-911 [2001], lv dismissed 96 NY2d 867 [2001]).

2026To obtain summary reversal based on a record defect, a defendant bears the "burden to establish that a reconstruction hearing would be futile" ( Yavru-Sakuk , 98 NY2d at 61-62).

2026To obtain summary reversal based on a record defect, a defendant bears the "burden to establish that a reconstruction hearing would be futile" ( Yavru-Sakuk , 98 NY2d at 61-62 ).

2010Thus, because the record is ambiguous on the issue whether defendant was present for the Sandoval hearing, and because the Sandoval ruling was “not wholly favorable” to defendant (People v Favor, 82 NY2d 254, 267 [1993], rearg denied 83 NY2d 801 [1994]), in my view we should hold the case, reserve decision, and remit the matter to Supreme Court for a reconstruction hearing (see People v Michalek, 82 NY2d 906, 907 [1993]).

2000Thus, we remit the matter to the Supreme Court for a reconstruction hearing to determine if the defendant was present (see, People v Michalek, 82 NY2d 906 ; People v Favor, 82 NY2d 254 ; People v Dokes, 79 NY2d 656 ; People v Smythe, 216 AD2d 424 ; People v Bazil, 212 AD2d 622 ).

2023Contrary to defendant's additional contention, we conclude that the record of the reconstruction hearing conducted by the court supports its determinations that three unmarked documents contained in the court file were not jury notes that had been duly transmitted to the court during deliberations, and that there was thus no failure to comply with the procedures required by CPL 310.30 and People v O'Rama ( 78 NY2d 270 [1991]) with respect to those documents ( see People v Meyers , 162 AD3d 1074 , 1075 [2d Dept 2018], affd 33 NY3d 1018 [2019]).

2023Contrary to defendant's additional contention, we conclude that the record of the reconstruction hearing conducted by the court supports its determinations that three unmarked documents contained in the court file were not jury notes that had been duly transmitted to the court during deliberations, and that there was thus no failure to comply with the procedures required by CPL 310.30 and People v O'Rama ( 78 NY2d 270 [1991]) with respect to those documents ( see People v Meyers , 162 AD3d 1074 , 1075 [2d Dept 2018], affd 33 NY3d 1018 [2019]).

2014We therefore hold the case, reserve decision and remit the matter to Supreme Court for a reconstruction hearing on that issue (see Kahley, 105 AD3d at 1324-1325 ; see generally People v Cruz, 42 AD3d 901, 901 [2007]; People v Russo, 283 AD2d 910, 910-911 [2001], lv dismissed 96 NY2d 867 [2001]).

2014We therefore hold the case, reserve decision and remit the matter to Supreme Court for a reconstruction hearing on that issue (see Kahley, 105 AD3d at 1324-1325 ; see generally People v Cruz, 42 AD3d 901, 901 [2007]; People v Russo, 283 AD2d 910, 910-911 [2001], lv dismissed 96 NY2d 867 [2001]).

2005Upon our earlier consideration of this appeal, we withheld decision and remitted the matter to County Court for a reconstruction hearing in order to enable us to resolve defendant’s Antommarchi claim ( 14 AD3d 877 [2005]; see People v Antommarchi, 80 NY2d 247 [1992]).

2004Upon defendant’s appeal from his conviction, this Court remanded the matter to the Supreme Court for a reconstruction hearing to resolve certain factual issues as to whether defendant knowingly, intelligently and voluntarily waived his right to attend robing room conferences with prospective jurors ( 304 AD2d 391 [2003]; see also People v Antommarchi, 80 NY2d 247 [1992]).

2016Thus, inasmuch as the present record does not permit us to review defendant’s contention, and he cannot be faulted for failing to prepare a proper appellate record under the circumstances, “we hold the case, reserve decision and remit the matter to [County] Court to conduct a reconstruction hearing with respect to the missing records” (People v Fullen, 118 AD3d 1297, 1298 [2014]; see People v Russell, 48 AD3d 900, 901 [2008]; cf. People v Cortijo, 254 AD2d 125, 125 [1998], lv denied 92 NY2d 1030 [1998]).

2015Memorandum: We previously held this case, reserved decision, and remitted the matter to Supreme Court to conduct a reconstruction hearing with respect to the victim’s missing psychiatric records (People v Fullen, 118 AD3d 1297 [2014]).

2025In that circumstance, because the reversible error is the court's failure to comply with O'Rama on the record, reconstruction of what happened off the record would be futile, and therefore a reconstruction hearing is unwarranted ( see Morrison , 32 NY3d at 952 ; Parker , 32 NY3d at 61-62 ).

2025In that circumstance, because the reversible error is the court's failure to comply with O'Rama on the record, reconstruction of what happened off the record would be futile, and therefore a reconstruction hearing is unwarranted ( see Morrison , 32 NY3d at 952 ; Parker , 32 NY3d at 61-62 ).

2018Thus, in People v Walker ( 18 NY3d 839 [2011]), we held that a reconstruction hearing was necessary to determine whether the defendant's right to be present for his Sandoval hearing was violated ( see also People v Michalek , 82 NY2d 906, 907 [1994]; People v Monclavo , 87 NY2d 1029, 1031 [1996]).

2010Thus, because the record is ambiguous on the issue whether defendant was present for the Sandoval hearing, and because the Sandoval ruling was “not wholly favorable” to defendant (People v Favor, 82 NY2d 254, 267 [1993], rearg denied 83 NY2d 801 [1994]), in my view we should hold the case, reserve decision, and remit the matter to Supreme Court for a reconstruction hearing (see People v Michalek, 82 NY2d 906, 907 [1993]).

2001The record is sufficiently ambiguous with respect to whether or not defendant was present at the sidebar conferences during the second round of jury selection, December 2, 1998, to warrant a reconstruction hearing (see, People v Odiat, 82 NY2d 872 ).

1997We therefore remit the matter to the Supreme Court to hold a reconstruction hearing and to make findings of fact as to what transpired (see, People v Odiat, 82 NY2d 872 ).

2014At the reconstruction hearing, “the People ha[d] the burden of establishing the facts by a preponderance of the evidence” (People v Terry, 225 AD2d 1058, 1058 [1996], lv denied 88 NY2d 886 [1996]; see People v Pitsley, 300 AD2d 1010, 1011 [2002]; People v Goodman, 284 AD2d 928, 928 [2001]; see also People v Durda, 265 AD2d 824, 824 [1999], lv denied 94 NY2d 862 [1999]; People v Nelson, 234 AD2d 977, 977 [1996], lv denied 89 NY2d 1039 [1997]).

2014At the reconstruction hearing, “the People ha[d] the burden of establishing the facts by a preponderance of the evidence” (People v Terry, 225 AD2d 1058, 1058 [1996], lv denied 88 NY2d 886 [1996]; see People v Pitsley, 300 AD2d 1010, 1011 [2002]; People v Goodman, 284 AD2d 928, 928 [2001]; see also People v Durda, 265 AD2d 824, 824 [1999], lv denied 94 NY2d 862 [1999]; People v Nelson, 234 AD2d 977, 977 [1996], lv denied 89 NY2d 1039 [1997]).

2025To be sure, if a defendant shows that they are entitled to a reconstruction hearing, and that the missing transcript at issue "cannot be reconstructed . . . , there must be a reversal" ( Harrison , 85 NY2d at 796 ).

2025To be sure, if a defendant shows that they are entitled to a reconstruction hearing, and that the missing transcript at issue "cannot be reconstructed . . . , there must be a reversal" ( Harrison , 85 NY2d at 796 ).

2025In appropriate circumstances, a court "may hold a reconstruction hearing with the parties[ and] any witnesses or evidence the court deems helpful" ( Bethune , 29 NY3d at 541 ; see People v Velasquez , 1 NY3d 44, 49 [2003]).

2022We therefore reverse the order, grant the motion, and remit the matter to Supreme Court to hold a reconstruction hearing with the parties and any witnesses or evidence the court deems helpful in reconstructing, if possible, those portions of the testimony of plaintiff and defendant that could not be transcribed ( see Bethune , 29 NY3d at 541 ; Trejo , 184 AD3d at 761 ; Henderson , 140 AD3d at 1761 ; see generally CPLR 5525; Monaco v New York City Tr.

2023We therefore hold the case in abeyance, reserve decision, and remit the matter to County Court for a reconstruction hearing with respect to the plea proceedings ( see People v Henderson , 140 AD3d 1761, 1761 [4th Dept 2016]; People v Manon , 123 AD3d at 468 ; People v Martino , 61 AD2d 903, 903 [1st Dept 1978]; cf. People v Childs , 232 AD2d 308, 308-309 [1st Dept 1996]; People v Allen , 224 AD2d 1027, 1027 [4th Dept 1996]; People v Rowles , 162 AD2d 774 , 774-775 [3d Dept 1990]).

2022We therefore reverse the order, grant the motion, and remit the matter to Supreme Court to hold a reconstruction hearing with the parties and any witnesses or evidence the court deems helpful in reconstructing, if possible, those portions of the testimony of plaintiff and defendant that could not be transcribed ( see Bethune , 29 NY3d at 541 ; Trejo , 184 AD3d at 761 ; Henderson , 140 AD3d at 1761 ; see generally CPLR 5525; Monaco v New York City Tr.

2025Even where, as here, the defendant seeks that remedy after a reconstruction hearing, "it is the defendant's burden to demonstrate that genuine appealable issues exist, and that alternative methods of providing an adequate record are not available, before the defendant is entitled to [summary] reversal of [the] conviction" and a new trial ( People v Kings , 100 AD3d 1019 , 1019 [2d Dept 2012], lv denied 20 NY3d 1062 [2013]; see People v Breaziel , 246 AD2d 310, 310-311 [1st Dept 1998], lv denied 91 NY2d 940 [1998]; People v Andino , 183 AD2d 834, 834-835 [2d Dept 1992], lv denied 80 NY2d 901 [1

2025Here, defendant "failed to demonstrate that the reconstruction hearing was inadequate to protect his right of appeal" ( Kings , 100 AD3d at 1020; see Breaziel , 246 AD2d at 310-311 ; Andino , 183 AD2d at 834-835 ; Kenefick , 144 AD2d at 997 ).

1992Thus, we find that the defendant has failed to demonstrate that the reconstruction hearing was inadequate to protect his right of appeal (see, People v Glass, supra; People v Suren, supra; People v Smalls, supra).

1988Moreover, defendant has not rebutted the presumption of validity of the judgment of conviction (see, People v Bell, 36 AD2d 406 , affd 29 NY2d 882 ) by showing that the reconstruction hearing was inadequate (see, People v Glass, 43 NY2d 283 ; People v Smalls, 116 AD2d 675 , Iv denied 67 NY2d 890 ; cf., People v Rivera, 39 NY2d 519 ).

2004Also contrary to defendant’s contention, the record of the reconstruction hearing supports the court’s determination that defendant was present at all material stages of the trial (see CPL 260.20; People v Roman, 88 NY2d 18, 25-26 [1996], rearg denied 88 NY2d 920 [1996]).

2003The record of the reconstruction hearing supports the court’s determination that there was no violation of defendant’s right to be present at any material stage of the trial (see CPL 260.20; People v Roman, 88 NY2d 18, 25-26 [1996], rearg denied 88 NY2d 920 [1996]).