Opinion
Decided December 21, 2004.
APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered December 30, 2003. The Appellate Division affirmed a judgment of the Supreme Court, New York County (Edward McLaughlin, J.), which had convicted defendant, upon a jury trial, of criminal sale of a controlled substance in or near school grounds, criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree.
People v. Marquez, 2 AD3d 343, reversed.
Center for Appellate Litigation, New York City ( William A. Loeb and Robert S. Dean of counsel), for appellant.
Robert Morgenthau, District Attorney, New York City ( Heather Pearson of counsel), for respondent.
Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur.
OPINION OF THE COURT
The order of the Appellate Division should be reversed and the case remitted to the Appellate Division for further consideration in light of People v. Parris ( 4 NY3d 41 [decided today]).
We hold in Parris that, where a significant portion of minutes of proceedings has been lost, a defendant appealing a conviction after trial is normally entitled to a reconstruction hearing if he has acted with reasonable diligence to mitigate the harm resulting from the mishap. In Parris, the record permitted us to conclude as a matter of law that the defendant had not acted with reasonable diligence. The record in this case, however, does not permit us to rule on that question. On remittal, the Appellate Division should decide (or, if it thinks better, should instruct Supreme Court to decide), after giving the parties an opportunity to make appropriate submissions, whether defendant acted with reasonable diligence, as Parris requires. If he did, a reconstruction hearing should be ordered, and if he did not his conviction should be affirmed.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals ( 22 NYCRR 500.4), order reversed and case remitted to the Appellate Division, First Department, for further proceedings in accordance with the memorandum herein.