                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 31, 2016                    106824
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

GENE BOWMAN,
                    Appellant.
________________________________


Calendar Date:   February 8, 2016

Before:   McCarthy, J.P., Egan Jr., Rose, Devine and Clark, JJ.

                             __________


      Paul J. Connolly, Delmar, for appellant, and appellant
pro se.

      P. David Soares, District Attorney, Albany (Brittany L.
Grome of counsel), for respondent.

                             __________


Devine, J.

      Appeal from a judgment of the County Court of Albany County
(Lynch, J.), rendered June 2, 2014, upon a verdict convicting
defendant of the crime of rape in the first degree.

      Defendant appeals from a jury verdict convicting him of
rape in the first degree. He raises a variety of arguments on
appeal, including that County Court abused its discretion in
denying his request for access to the medical and psychiatric
records of the victim (see People v McCray, 23 NY3d 193, 198
[2014]; People v Gissendanner, 48 NY2d 543, 548 [1979]). Those
records were subpoenaed and reviewed in camera by County Court,
which determined that they contained no material and relevant
information and sealed them. While the sealed records were
                              -2-                  106824

supposedly provided to this Court, they do not appear to include
many of the documents referenced and reviewed by County Court,
and we can only say with confidence that we have the documents
designated by County Court as exhibit No. 3. Thus, inasmuch as
the present record does not permit us to review defendant's
contention, and he cannot be faulted for failing to prepare a
proper appellate record under the circumstances, "we hold the
case, reserve decision and remit the matter to [County] Court to
conduct a reconstruction hearing with respect to the missing
records" (People v Fullen, 118 AD3d 1297, 1298 [2014]; see People
v Russell, 48 AD3d 900, 901 [2008]; cf. People v Cortijo, 254
AD2d 125, 125 [1998], lv denied 92 NY2d 1030 [1998]).

     McCarthy, J.P., Egan Jr., Rose and Clark, JJ., concur.



      ORDERED that the decision is withheld, and matter remitted
to the County Court of Albany County for further proceedings not
inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
