People v. Greenfield

Gulotta and Cohalan, JJ.,

dissent and vote to remit the case to Criminal Term to hear and report on the question of whether the verdict, as was pronounced by the foreman of the jury, was accurately recorded by the clerk of the trial court pursuant to CPL 310.80, and pending such report, to hold the appeal in abeyance, with the following memorandum: Appellant was indicted on two counts of attempted robbery in the first degree (Penal Law, § 160.15, subds 3, 4) and one count of attempted grand larceny in the third degree (Penal Law, § 155.30, subd 5). A review of the minutes of the rendition of verdict as recorded by the court stenographer, indicates that the foreman of the jury answered that the defendant had been found guilty of both one count of attempted robbery in the first degree and attempted grand larceny in the third degree. However, for reasons unclear on the present record, the clerk of the trial court, in recording the verdict (see CPL 310.80), stated that the defendant had been found guilty of attempted robbery in the first degree, but not guilty of attempted grand larceny in the third degree. No objection was offered by anyone, including members of the jury panel, to the verdict as recorded by the clerk of the court, and the case has proceeded on the apparent assumption that appellant was acquitted of the attempted grand larceny charge. We agree with appellant and our brethren in the majority that should the court stenographer have made an egregious mistake and appellant have actually been acquitted of the latter offense, then the verdict must be considered repugnant and the indictment will have to be dismissed (see People v Acevedo, 40 NY2d 701, 707; People v Carbonell, 40 NY2d 948; People v Edwards, 61 AD2d 1016). In our view, however, it cannot be satisfactorily determined on the present record whether appellant was convicted or acquitted of attempted grand larceny in the third degree. Consequently, we believe that a hearing should be held, with defendant present, to determine if the verdict, as pronounced by the foreman of the jury, was faithfully and accurately recorded by the clerk of the court (see CPL 310.80; People v Salemmo, 38 NY2d 357, 361) and that the appeal should be held in abeyance in the interim. The trial court should therefore be directed to subpoena the court stenographer together with her stenographic notes in order to ascertain whether the transcription appearing at Page No. 232 thereof is accurate. In the event that the stenographer confirms that the transcription is correct, the trial court should then subpoena the original jury panel. However, if it cannot be established with certitude that appellant was in fact convicted of attempted grand larceny in the third degree, the indictment will have to be dismissed.