THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. ROBERT FULLEN JR DEFENDANT APPELLANT (2014)

Supreme Court, Appellate Division, Fourth Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. ROBERT FULLEN, JR., DEFENDANT–APPELLANT.

KA 09–01961

Decided: June 13, 2014

PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND VALENTINO, JJ.

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Supreme Court, Monroe County, for further proceedings in accordance with the following Memorandum: On appeal from a judgment convicting him of rape in the second degree (Penal Law § 130.30[1] ) and criminal sexual act in the second degree (§ 130.45[1] ), defendant contends that Supreme Court committed reversible error in denying him access to the victim's psychiatric records. Those records, which the court reviewed in camera, have not been included in the record on appeal. Inasmuch as the present record on appeal does not permit us to review defendant's contention, we hold the case, reserve decision and remit the matter to Supreme Court to conduct a reconstruction hearing with respect to the missing records (see generally People v. Yavru–Sakuk, 98 N.Y.2d 56, 60).

Frances E. Cafarell

Clerk of the Court

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