PEOPLE v. MARQUEZ (2004)

OPINION OF THE COURT

MEMORANDUM.

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 N.Y.3d 41, 790 N.Y.S.2d 421, 823 N.E.2d 827 [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.

Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur.