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

1319
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 appeal was held
by this Court by order entered October 3, 2014, decision was reserved
and the matter was remitted to Supreme Court, Monroe County, for
further proceedings (121 AD3d 1536). The proceedings were held and
completed (Alex R. Renzi, J.).

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law and a new trial is granted on count
one of the indictment.

     Memorandum: We held this case and remitted the matter to Supreme
Court to conduct a reconstruction hearing with respect to the lost
recording of a 911 call (People v Thomas, 121 AD3d 1536). At the
hearing, the People called only one witness, a police officer who had
only a “vague” recollection of what was said by the complainant on the
911 call. We agree with defendant that the People were unable to meet
their burden of establishing the content of the 911 call, and thus
meaningful appellate review of defendant’s contentions is not possible
(see People v Hasenflue, 48 AD3d 888, 890, lv denied 11 NY3d 789;
People v Ha, 18 AD3d 1068, 1068, lv denied 5 NY3d 788; People v
Jacobs, 286 AD2d 404, 405; see generally People v Yavru-Sakuk, 98 NY2d
56, 59). We therefore reverse the judgment and grant a new trial on
count one of the indictment.




Entered:    December 23, 2015                      Frances E. Cafarell
                                                   Clerk of the Court
