           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

455
KA 09-01961
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

ROBERT FULLEN, JR., DEFENDANT-APPELLANT.


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.


     Appeal from a judgment of the Supreme Court, Monroe County (David
D. Egan, J.), rendered July 30, 2009. The judgment convicted
defendant, upon a jury verdict, of rape in the second degree and
criminal sexual act in the second degree.

     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 NY2d 56, 60).




Entered:   June 13, 2014                           Frances E. Cafarell
                                                   Clerk of the Court
