People v. Valentin

Bloom, J.

(concurring). While I agree with my brethren that there must be a reversal of the judgment of conviction, I would place my concurrence on the limited ground that the absence of an adequate record precludes review of the judgment before us. We are informed that the stenographic minutes of one full day of the trial — the testimony of May 25, 1975 — are missing. On that day all of the defendant’s witnesses, including the defendant himself, testified. A reconstruction hearing was held on November 8, 1978, almost two and one-half years later. In large part, it drew upon the summation of counsel, the charge and the information attached to the indictment. Motions made on the day in question are missing from the reconstructed record as are evidentiary rulings and requests to charge. Although it may have been possible to reconstruct the testimony of the witnesses with a greater or lesser degree of accuracy, based on the "evidence” as recited in the summations of counsel, there is dispute among the attorneys as to whether requests were made for charges on criminal facilitation — the ground relied upon by my brethren for reversal — and the defense of agency. We are thus left with a record so imperfect that we cannot say whether or not appealable issues were preserved for review. Under these circumstances, we have no alternative but to reverse and remand for a new trial.