
    The People of the State of New York, Appellant, v Luis Rivera, Respondent.
    Argued February 18, 1976;
    decided May 11, 1976
    
      
      Eugene Gold, District Attorney (Mark M. Baker of counsel), for appellant.
    Since the unavailability of the transcript of respondent’s trial is not attributable to any action of the State, the hearing hereinbefore conducted in order to determine the existence of any appealable issues was the proper remedial procedure. In the absence of any resulting affirmative findings, the judgment of conviction should have been affirmed. (People v Bell, 36 AD2d 406, 29 NY2d 882; Griffin v Illinois, 351 US 12; Norvell v Illinois, 373 US 420; Gallegos v Cox, 358 F2d 703; Rondinone v Reincke, 424 F2d 1307, 397 US 1056; Guerra v Rodriquez, 372 F2d 472; Pisani v Warden, Md. Penitentiary, 289 F Supp 232; Carden v Henderson, 284 F Supp 1009; United States ex rel. Hunter v Follette, 307 F Supp 1023, 420 F2d 779, 397 US 1067.)
    
      Jane Deutscher and Steven J. Hyman for respondent.
    The absence of the transcript of respondent’s trial and sentence deprives him of full and fair appellate review and necessitates reversal of the conviction. (Douglas v California, 372 US 353; Griffin v Illinois, 351 US 12; People v Montgomery, 24 NY2d 130; Draper v Washington, 372 US 487; Eskridge v Washington Prison Bd., 357 US 214; Coppedge v United States, 369 US 438; People v Giles, 12 App Div 495, 152 NY 136; People v Pride, 3 NY2d 545; Norvell v Illinois, 373 US 420.)
   Fuchsberg, J.

The issue is whether an indigent defendant who, because he was originally not advised of his right to appeal, has been resentenced nunc pro tunc so as to recommence the running of his time to appeal, is entitled, under the special circumstances in this case, to a new trial where a transcript of the original trial minutes is unobtainable and no alternative sources for perfecting his appeal or for demonstrating appealable issues any longer exist.

In 1953, following a full trial, the defendant, Luis Rivera, then represented by court-appointed counsel, was convicted and sentenced for having sold a quantity of marijuana equal to less than 10 cigarettes in violation of the Public Health Law. Neither at the sentencing or postsentencing proceedings was he ever made aware of his right to appeal. He first learned of it many years later when, on the occasion of a second conviction, he was sentenced to 10 to 15 years in prison, a far greater penalty than the one which could have been imposed had he not been a second offender (Penal Law, § 70.06). By then the statutory time within which he would have been required to file a notice of appeal was long gone (Code Crim Pro, §§ 521-524, re-enacted as CPL 460.10).

Thereafter, Rivera applied for a writ of error coram nobis, basically on the grounds advanced in People v Montgomery (24 NY2d 130). Following a tortuous series of motions, he succeeded in obtaining a judicial determination that he had in fact never been advised of his right to appeal his 1953 conviction and that, as a result, now in 1973, he was entitled to be resentenced nunc pro tunc so as to permit his time to appeal to run anew. However, after the resentencing, when he sought to pursue his newborn right, he found himself stymied by the discovery that no transcript of the minutes of thé trial or sentencing could be found, a fact which the People concede.

Accordingly, asserting that the Appellate Division would, therefore, find it impossible to review the proceedings, Rivera moved in that court for summary reversal of the 1953 judgment. The Appellate Division did not decide the motion immediately, but first referred the matter to the Supreme Court, Kings County, for a hearing and report as to what appealable issues, if any, there were in the case. The Supreme Court Justice who heard the evidence on that question reported that Rivera had failed to establish the existence of such issues, and, on that basis, the Appellate Division thereupon denied defendant’s motion to disaffirm the report. Nevertheless, on direct appeal, it reversed the original judgment of conviction and ordered a new trial. The People now appeal from that order. For the reasons which follow, there should be an affirmance.

In New York State, every defendant has an absolute and "fundamental right” to appeal a conviction (People v Montgomery, 24 NY2d 130, 132, supra; see, also, CPL 450.10). The denial of that right constitutes as much a failure of due process as would the denial of the right to a trial itself, and, where its denial or serious obstruction comes about because of poverty, it constitutes a denial of equal protection as well (Griffin v Illinois, 351 US 12, 18; People v Montgomery, supra, p 134).

A stenographic transcript of the proceedings is, of course, an invaluable aid to the prosecution of most appeals. This is all the more so when an appeal follows a trial at which testimony was taken. Without it, a reviewing court may be unable to provide the review of a conviction that a defendant is entitled to receive. Thus, where it would serve to better present the appealable issues, a defendant may not be denied the use of a transcript simply because he does not possess the means to secure it (People v Pride, 3 NY2d 545; Griffin v Illinois, supra; Eskridge v Washington Prison Bd., 357 US 214 [making Griffin applicable to the States]).

However, a stenographic transcript is not necessarily the only effective way to present the issues on appeal in a particular case. It may, for instance, be possible, for the purpose of appeal, to adequately reconstruct the proceedings at trial and at sentencing by a narrative bill of exceptions based on agreement on the underlying facts and legal issues by counsel, or by counsel and the court, or by resort to other available sources. (Griffin v Illinois, supra, at p 20, n 17 [Black, J., for the majority], p 32 [Harlan, J., dissenting]; cf. People v Boulware, 29 NY2d 135). Appeals were perfected, heard and justly determined with the aid of such other devices long before modern stenography and the stenotype machine arrived on the scene. (See Re, Brief Writing and Oral Argument, [4th ed], pp 58-59.)

Thus, while a defendant should have as fair an appeal as possible, and while, if the use of available minutes would aid in assuring it, he is entitled to have their assistance, unless they have become unavailable because of any active fault on the part of the People, it does not necessarily follow from the fact that their absence compels resort to a less perfect record, that the right to appeal must be deemed to be frustrated. For, in this imperfect world, the right of a defendant to a fair appeal, or for that matter a fair trial, does not necessarily guarantee him a perfect trial or a perfect appeal. (Cf. People v Bowden, 48 AD2d 962; People v Colon, 43 AD2d 676; People v Hicks, 85 Misc 2d 649.)

In such circumstances, a hearing to determine, among other things, the availability of means other than a transcript for the presentation of the appealable and reviewable issues, may be desirable. Such a hearing may also be directed to determining such other matters as the adequacy of the substitute means and the presence of the issues themselves, if any, the last indeed being the more limited purpose for the reference by the Appellate Division in the present case. Since such a hearing treats with what are essentially factual matters, we believe it would be useful to summarize the pertinent facts here, both those developed on the single issue heard on the reference to the Supreme Court Justice and those others which were also before the Appellate Division when it reversed on direct appeal. They are undisputed.

Firstly, Rivera himself is completely unable to help reconstruct the testimony of the trial which took place 23 years ago, much less relate the evidentiary or legal issues that arose at that time. That inability is not because of the long passage of time alone. Possessed of no knowledge of English at all, he relied completely on an interpreter when he took the stand. There is no indication that any effort was made to overcome his language barrier by providing him with intelligent information as to what was taking place at any other point in the proceedings. It would in fact be contrary to usual court practice for an interpreter to be provided for that purpose. Also, as a complicating aftermath of shock treatments administered under the supervision of the prison authorities immediately after his incarceration for the conviction at issue, here, he suffers from a complete retrograde amnesia of the trial as well as of other previous major events in his life.

The opposing counsel at trial, their records and their recollections, therefore become all the more vital. Yet they are no more able to fill the vacuum than is the defendant. The prosecuting attorney’s memory, even were we to assume that it might otherwise have continued to serve him after this long, lapse of time, has been undermined by an unfortunate paralytic stroke. Rivera’s attorney, who departed his client’s cause without even advising him of his right to appeal, much less taking any step to preserve it, has since been disbarred and cannot be located. The fact that he was court appointed because Rivera was poor is not without significance (cf. Norvell v Illinois, 373 US 420).

Finally, the Judge who presided at the trial is deceased. And no other possible sources for the reconstruction of the issues are suggested by either party.

These facts, especially in combination, of course had to have resulted in the confirmed finding that Rivera was unable to demonstrate the existence of appealable and reviewable issues. But they also had to have established to the satisfaction of the Appellate Division, as they evidently did, that, without a transcript, it is impossible in this case either to establish that there were or were not in fact such issues, or, if there were, to present them on appeal.

Under these unusual circumstances, the presumption of regularity which ordinarily attaches to judicial proceedings (People v Richetti, 302 NY 290, 298) does not avail the People here. That presumption, like all presumptions except those which have been made conclusive by the Legislature as a matter of substantive law (see 9 Wigmore Evidence [3d ed], § 2492; Richardson, Evidence [10th ed], § 56), is but a rule of evidence based on experience. To shift the burden of its rebuttal to one who, by unchallengeable facts, has proved that he has been rendered unable to present such evidence for reasons beyond his control would be to subvert its purpose. That is why evidentiary principles make allowance for the interposition of amnesia and like barriers to the presentation of proof. (Cf. Amnesia-Criminal Capacity, Ann., 46 ALR3d 544; Noseworthy v City of New York, 298 NY 76; Schechter v Klanfer, 28 NY2d 228 [civil cases].)

Further, the presumption of regularity may also be considered less demanding since Rivera went through a full trial, with all the greater possibilities for appealable issues that would follow, than would have been the case had he pleaded guilty so that only the sentencing proceedings would be up for review (cf. People v Bell, 36 AD2d 406). Especially is this so since the order vacating the sentence established that Rivera himself was not at fault in losing his original right to appeal.

It is noteworthy too that, though this is not a case where there is any claim that the State, by affirmative or negligent conduct, has been the active and effective cause of prejudice to the defense, in which event there would have to be a reversal at least on grounds of fairness (cf. Brady v Maryland, 373 US 83), the minutes in the present case are unavailable not for a cause such as destruction beyond the control of either party, but because of the long delay in informing Rivera of his right to take appeal and to promptly secure the minutes for that purpose. That not only " 'seriously impeded his right to a fair [appeal]’ ” (United States v Augenblick, 393 US 348, 356), but also was a reason directly related to the conduct, though passive, of the People.

As this court has said, "There is no question that the primary duty of furnishing legal advice to indigent defendants is a State responsibility. Either by permitting assigned counsel’s role to terminate at the end of trial, or failing to provide safeguards against lack of information, the State permitted a critical time period to lapse of which the defendant was unaware” (People v Montgomery, 24 NY2d 130, 133, supra; cf. People v Adams, 12 NY2d 417; People v Hairston, 10 NY2d 92; People v Mininni, 21 AD2d 811; People v Dominick, 68 Misc 2d 425).

Accordingly, the order should be affirmed.

Jasen, J. (dissenting).

On this appeal, the sole question before us is whether, 23 years after conviction, a defendant who was not advised of his right to appeal and who, pursuant to People v Montgomery (24 NY2d 130), was resentenced nunc pro tunc so as to commence again the time in which to take an appeal, is entitled to a new trial solely because there no longer exists a transcript of the original trial proceedings, even though the Appellate Division has affirmed a finding that the defendant has failed to raise any appealable issues with respect to the first trial. Since I cannot agree that the absence of a trial transcript under such circumstances warrants a new trial, I would reverse the order of the Appellate Division and reinstate the judgment of conviction.

On May 14, 1953, defendant was convicted, after a jury trial, of three counts of an indictment charging him with the possession and sale of marijuana. He was sentenced to a term of imprisonment of from two and one half to five years. In 1965 he was again convicted of the possession and sale of narcotics. He was adjudged a second-felony offender and received a sentence of imprisonment of from 10 to 15 years. In April, 1972 defendant moved for an order vacating his 1953 conviction, contending that he had never been advised of his right to appeal. That motion was apparently never disposed of, and a series of related motions followed. Finally, after defendant’s fourth motion, a hearing was held and in June, 1973 it was determined that defendant had not been advised of his right to appeal. The 1953 judgment of conviction was vacated and he was resentenced to two and one half to five years, nunc pro tunc as of July 1, 1953, so as to afford him an additional period of time in which to appeal. Defendant then did appeal that judgment. In addition, he moved for a summary reversal of the 1953 conviction on the ground that the trial transcripts and the original sentencing minutes were not available and that the Appellate Division was therefore incapable of reviewing the prior proceedings. The Appellate Division referred the matter to the Supreme Court for a hearing to ascertain the existence of appealable issues, and held the motion in abeyance. After a hearing, the Supreme Court determined that defendant had failed to prove the existence of any appealable issues. Defendant’s subsequent motion to the Appellate Division to "disaffirm” this finding, as well as his original motion for summary reversal, were then denied by the Appellate Division, which cited People v Bell (36 AD2d 406, affd without opn 29 NY2d 882) in its decision. There remained unresolved, however, the underlying appeal from the judgment of conviction. Following argument of the appeal itself, the Appellate Division reversed the judgment which had been entered upon the conviction in 1953 and ordered a new trial, solely on the ground that a trial transcript was unavailable (47 AD2d 864).

In my view, today’s holding undermines the well-founded presumption of regularity attaching to all judicial proceedings and judgments of conviction. (People v Bell, 36 AD2d 406, 408, affd without opn 29 NY2d 882, supra; see People ex rel. Price v Hayes, 151 App Div 561, 566; People ex rel. Kammerer v Brophy, 255 App Div 821, 822, affd without opn 280 NY 618; McCormick, Evidence [2d ed], § 343, p 807; cf. Wolfe v Burke, 56 NY 115, 119.) This presumption of regularity remains until rebutted by substantial evidence to the contrary. (People v Richetti, 302 NY 290, 298; see Galpin v Page, 18 Wall [85 US] 350, 365.) Nothing in the record before us suggests any reason why this presumption of regularity should not be given full effect here. Indeed, defendant’s actions corroborate the presumed regularity. Defendant’s failure to take an immediate appeal in 1953 is, of course, excusable under the rationale of People v Montgomery (24 NY2d 130, supra). However, at the time of the second-felony offender proceedings in 1966 he did not challenge the validity of the 1953 judgment. Instead, he waited three years after our decision in Montgomery was announced before commencing the proceeding which made the instant appeal possible. At no time has he suggested that the original trial and the related proceedings were in any respect irregular. He does not articulate a single appealable issue with respect to his conviction, and in our court he has not challenged the finding of Supreme Court, Criminal Term, affirmed by the Appellate Division, that there were, in fact, no such appealable issues. Common sense and fairness to all concerned, to defendants as well as to the People, require that this important presumption of regularity be given full effect in situations like this, especially where no claim that the proceedings were irregular in any respect is made until many years after trial.

In holding that this defendant merits a new trial, the court imposes upon the People the burden of performing the literally impossible task of providing defendant with a transcript which apparently never existed for the reason that the stenographer’s notes were in all likelihood destroyed, wholly in good faith, many years before this Montgomery claim was raised. This ignores the universally accepted practice, sanctioned by statute, of destroying stenographic notes after a reasonable period of time where no appeal has been taken. (See Judiciary Law, § 297, which permits the destruction of stenographic notes two years after the trial or hearing.) Such a requirement cannot be justified.

Due to the passage of time, it is unlikely that this defendant will be retried for a crime which he allegedly committed more than two decades ago. Thus, he can expect to have the indictment dismissed, with the result that he will be freed from the second-felony offender penalties imposed upon him following his 1965 conviction. But my concern extends far beyond the windfall conferred upon this defendant. Today’s holding is certain to continue to have a significant impact. It is well known that a person whose sentence was completed before the date of the Montgomery decision usually has little interest in raising a Montgomery claim until he is convicted of another felony and is treated as a second-felony offender (Penal Law, § 70.06) or as a persistent felony offender (Penal Law, § 70.10). Thus our courts can expect to be confronted with predicate felony convictions predating Montgomery for some time to come.

In this case, like all cases in which a Montgomery claim is raised, we should keep in mind two considerations which are not always easily reconciled. On the one hand, we should safeguard the continuing right of a defendant to have his appeal heard if he was unaware of his right to appeal. On the other hand, we should be equally vigilant in protecting the right of the People to have a judgment of conviction upheld by the appellate courts where no genuine appealable issue is raised and when it is not shown that the judgment was irregular in any respect. Thus, in People v Lynn (28 NY2d 196), we balanced these concerns by holding that a defendant who was convicted upon his plea of guilty is not entitled to Montgomery relief unless he can show that at the time he might have undertaken an appeal he had a genuine appeal-able issue. I would extend this rule to all Montgomery situations, even where a defendant is convicted after a trial. The presumption of regularity of judicial proceedings would seem to mandate such a rule. Moreover, such a rule would avoid the illogical result of granting a defendant a new trial where it has been determined that the defendant has raised no genuine appealable issue and offered no evidence that the trial and judgment of conviction were irregular in any respect.

For these reasons, I would reverse the order of the Appellate Division and reinstate the judgment of conviction.

Judges Gabrielli, Jones, Wachtler and Cooke concur with Judge Fuchsberg; Judge Jasen dissents and votes to reverse in a separate opinion in which Chief Judge Breitel concurs.

Order affirmed. 
      
       We note that a number of other States have followed a similar course (see Bauerlien v Warden, 236 Md 346; Hemsley v Warden, 2 Md App 603; House v United States, 234 A2d 805 [DC]; Whetton v Turner, 28 Utah 2d 47, cert den 414 US 862; State ex rel. Le Blanc v Henderson, 261 La 315; Pisani v Warden, 289 F Supp 232; People v Carson, 19 Mich App 1).
     
      
      . Of course, where a timely appeal is taken, the unavailability of a transcript cannot be excused, and a defendant must be granted a new trial. (People v Hartley, 34 AD2d 733; People v Boone, 22 AD2d 982; People v De Mayo, 2 AD2d 985.) However, this rule should have no application to a situation where no timely appeal has been taken and stenographic notes have been destroyed in compliance with the statute.
     
      
      . In the second-felony offender context, the sentence on the predicate felony conviction must have been imposed not more than 10 years before the commission of the second or subsequent felony. In calculating this 10-year period, however, any period of time during which the person was incarcerated for any reason between the time of commission of the predicate felony and the time of commission of the second or subsequent felony is to be excluded and the 10-year period extended by a period or periods equal to the time served under such incarceration. (Penal Law, § 70.06, subd 1, par [b], els [iv], [v].) Also, section 70.10 of the Penal Law specifies no time bar at all relative to predicate felony convictions used in the persistent felony offender context.
     