People v. Peacock

292 N.E.2d 785, 31 N.Y.2d 907, 340 N.Y.S.2d 642, 1972 N.Y. LEXIS 882

Opinions

Memorandum. The order of the Appellate Division should be reversed and a new trial ordered on the dissenting' opinion of Mr. Justice Shapiro in the Appellate Division. It is only necessary, in light of the dissenting opinion, to say that failure to provide pretrial minutes on timely demand is grounds for reversal without a showing of prejudice and presumably may not be treated as harmless error (People v. West, 29 N Y 2d 728; People v. Zabrocky, 26 N Y 2d 530, 536-537). The request for the suppression hearing minutes was made immediately after the conclusion of the hearing. Although the hearing itself was conducted on the eve of trial, the minutes were requested by defense counsel at the earliest opportunity. Moreover, the guilt of defendant Peacock was established in part with identification by the victim, Cusimano. Cusimano’s description at the trial of defendant’s facial hair differed from his earlier description at the suppression hearing. Having the transcript at hand would have permitted immediate cross-examination of the wit ness without him having the opportunity to accommodate his answers at trial with those given earlier. Reading back the stenographic notes would be no substitute for a transcript in hand.