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

917
KA 10-01432
PRESENT: CENTRA, J.P., CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

CHARLES M. THOMAS, SR., DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID R. JUERGENS 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 (Frank
P. Geraci, Jr., A.J.), rendered April 21, 2010. The judgment
convicted defendant, upon a jury verdict, of robbery in the third
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:
Defendant appeals from a judgment convicting him upon a jury verdict
of robbery in the third degree (Penal Law § 160.05). Contrary to
defendant’s contention, he is not entitled to summary reversal of the
conviction based upon the People’s posttrial loss of the recording of
the robbery victim’s 911 call that was admitted in evidence at trial
(see People v Yavru-Sakuk, 98 NY2d 56, 59). The content of the 911
call, however, is significant to several of the contentions raised on
appeal, and the information contained in the missing recording cannot
otherwise be obtained from the record on appeal (cf. People v
Melendez, 71 AD3d 530, 531, affd 16 NY3d 869; Yavru-Sakuk, 98 NY2d at
61). Inasmuch as the present record on appeal does not permit us to
review those contentions, we hold the case, reserve decision and remit
the matter to Supreme Court to conduct a reconstruction hearing with
respect to the missing recording (see People v Glass, 43 NY2d 283,
286; People v Lopez, 176 AD2d 218, 219; see also People v Fullen, 118
AD3d 1297, 1298).




Entered:   October 3, 2014                         Frances E. Cafarell
                                                   Clerk of the Court
