People v. Rochford

159 A.D.2d 527

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 5, 1990
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Friedman, J.), rendered October 29, 1986, convicting him of assault in the first degree, assault in the second degree, and assault in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the matter is remitted to the Supreme Court, Queens County, to hear and report in accordance herewith, and the appeal is held in abeyance in the interim. The Supreme Court, Queens County, is to file its report with all convenient speed.

The defendant claims that this court cannot properly review his conviction because the transcript of the complainant’s testimony on cross-examination is missing. However, contrary to the defendant’s contention, it cannot be conclusively ascertained from the record that his trial counsel did cross-examine the complainant. Accordingly, under the circumstances, we find it appropriate to remit the matter to the Supreme Court, Queens County, for a hearing to determine whether the complainant was cross-examined by the defendant’s trial counsel. If such cross-examination was conducted, then the trial court should ascertain whether the transcript of the cross-examination testimony is available. If the transcript is not available, then the trial court should conduct a reconstruction hearing. The appeal will be held in abeyance in the interim pending receipt of the trial court’s report. Lawrence, J. P., Rubin, Sullivan and Balletta, JJ., concur.