137 A.D.3d 1484
N.Y. App. Div.
2016

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v GENE BOWMAN, Appellant.

Supreme Court, Appellate Division, Third Department, New York

27 NYS3d 898

Devine, J. Appeal from a judgment of the County Court of Albany County (Lynch, J.), rendered June 2, 2014, upon a verdict convicting defendant of the crime of rape in the first degree.

Defendant appeals from a jury verdict convicting him of rape in the first degree. He raises a variety of arguments on appeal, including that County Court abused its discretion in denying his request for access to the medical and psychiatric records of the victim (see People v McCray, 23 NY3d 193, 198 [2014]; People v Gissendanner, 48 NY2d 543, 548 [1979]). Those records were subpoenaed and reviewed in camera by County Court, which determined that they contained no material and relevant information and sealed them. While the sealed records were supposedly provided to this Court, they do not appear to include many of the documents referenced and reviewed by County Court, and we can only say with confidence that we have the documents designated by County Court as exhibit No. 3. Thus, 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]).

McCarthy, J.P., Egan Jr., Rose and Clark, JJ., concur.

Ordered that the decision is withheld, and matter remitted to the County Court of Albany County for further proceedings not inconsistent with this Court’s decision.