People v. Laracuente

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Hellenbrand, J.), rendered February 23, 1984, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence. Ordered that the matter is remitted to the Supreme Court, Kings County, for a hearing to settle the transcript, in accordance herewith, and the appeal is held in abeyance in the interim. The Supreme Court, Kings County, shall file its report and a settled transcript with all convenient speed. On appeal, the defendant asserts, inter alia, that the trial court’s instructions to the jury contained numerous confusing and erroneous statements of law, the ultimate effect of which was to deprive him of a fair trial. Our initial review of the record reveals that the trial court’s charge with respect to the elements of murder in the second degree (see, Penal Law § 125.25 [1]), manslaughter in the first degree (see, Penal Law § 125.20 [1]), manslaughter in the second degree (see, Penal Law § 125.15 [1]) and criminally negligent homicide (see, Penal Law § 125.10) and more critically, the distinctions among them, contained patently erroneous statements including, e.g., that "manslaughter in the second degree, [requires] intention-all [sic] infliction of serious physical injury causing death”. The perplexing nature of these instructions becomes evident when viewed in the context in which they arose: they were contained within an extensive and largely accurate charge, and trial counsel for the defendant did not object or except to these very glaring errors. Subsequent to the oral argument of this appeal, the People, apparently prompted by this court’s inquiries regarding the accuracy of the trial transcript, which had been neither certified by a court reporter nor settled by the trial court (see, CPL 460.70), sought permission, in a letter to the court pursuant to this court’s rules (see, 22 NYCRR 670.22 [g]), to address the issue. An affidavit executed by the court reporter attesting that a number of discrepancies existed between her notes and the portions of the charge which she examined, and a designation of the corrections was submitted therewith. Upon reargument, the People requested that we accept their proffered affidavit attesting to the corrections in the [706] transcript and urged that the defendant’s conviction be affirmed since the affidavit revealed that the trial court correctly instructed the jury. The People alternatively requested that the matter be remitted for a settlement hearing at which the court reporter could testify as to the transcription errors. Defense counsel reiterated its position that reversal was warranted, the proposed corrections in the transcript notwithstanding. While we acknowledge that the People were remiss in the satisfaction of their obligation to ensure the accuracy of the transcript and that the procedurally proper course would have been to move before the Trial Justice to settle the transcript to accurately reflect what transpired (see, 22 NYCRR 670.16 [b]; 699.10; CPLR 5525 [c]; People v Martinez, 115 AD2d 768), our concerns regarding the potential prejudice which may result to both parties, i.e., the defendant, inasmuch as his claims are not preserved and are thus subject to review only by virtue of the exercise of this court’s "interest of justice” jurisdiction (see, CPL 470.15 [6] [a]); and the People, since an otherwise unwarranted reversal may result, compel us to conclude that a proper resolution of the issues may be had only subsequent to the settlement of the transcript, upon an accurate record. Indeed, this court long ago declared that "[a] party to an appeal is entitled to have his case show the facts as they really happened on the trial, and should not be prejudiced by an error or an omission of the stenographer” (People v Buccufurri, 154 App Div 827, 828). Thus, despite the procedurally irregular course which this appeal has taken, we conclude that the appeal must be held in abeyance and the matter must be remitted to the Trial Justice for a hearing to settle the transcript, so that the appeal will not be decided on the basis of an obviously incorrect transcript (see, People v Martinez, supra; People v Roldan, 96 AD2d 476, affg after remittal 99 AD2d 410, affd 64 NY2d 821; People v Carney, 73 AD2d 9, revd on other grounds 58 NY2d 51). Mollen, P. J., Weinstein and Kooper, JJ., concur.