People v. Burke
65 A.D.2d 734
N.Y. App. Div.
1978
Check Treatment

—This is an appeal from a judgment of the Supreme Court, Bronx County, rendered April 12, 1976, convicting the defendant after a jury trial of the crime of robbery in the first degree. The matter is remanded for a reconstruction hearing, and final determination of this appeal is held in abeyance pending the results of that hearing. The crime with which defendant was charged involved forcible theft of an automobile at gunpoint. Defendant acted with an accomplice, and they were jointly tried and convicted. Defendant claims that the court failed to instruct the *735jury that a separate verdict must be rendered as to each defendant and that the guilt of each must be weighed separately. Furthermore, defendant claims that the jury, after retiring to deliberate, returned to inquire whether they could find one defendant guilty and the other not guilty, to which the court responded in the negative. Defendant himself had communicated with his counsel about these errors prior to the transcription of the record. Unfortunately, in the case at bar, the transcript of the trial ends in the midst of the court’s final instructions to the jury. The transcript of the subsequent question asked by the jury is also unavailable. The absence of this crucial part of the transcript does not, however, entitle the defendant to an automatic reversal but, rather, reconstruction of a substitute record is in order (People v Glass, 43 NY2d 283). We have therefore directed a reconstruction hearing and will hold the determination of this appeal in abeyance pending the results of that hearing. Concur—Birns, J. P., Silverman, Evans, Fein and Lane, JJ.