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People v. Fearon

13 N.Y.2d 59 Court N.Y. Decision date 1963-07-10 English

Delivered by *61 Chief Judge Desmond.

Contents

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p. 59
The People of the State of New York, Respondent, v. Frank Fearon, Appellant.
Argued June 3, 1963;
decided July 10, 1963.
p. 60
William J. Doyle and Anthony F. Marra for appellant.
I. The Appellate Division erred in affirming the judgment of conviction. (People v. Schenkel, 256 N. Y. 539 ; People v. Manganaro, 218 N. Y. 9 ; People v. Migliori, 273 App. Div. 915 ; People v. Castellano, 273 App. Div. 978 ; People v. Decker, 143 App. Div. 590 ; People v. Reimann, 266 App. Div. 505 ; People v. Jones, 257 App. Div. 5 ; Hodgskin v. United States, 279 F. 85 ; People ex rel. Romano v. Brophy, 280 N. Y. 181 ; Stephens v. United States, 289 F. 2d 308 ; Brown v. United States, 314 F. 2d 293 ; People v. Di Stefano, 1 N Y 2d 739 .) II. Defendant did not waive compliance with section 456 of the Code of Criminal Procedure. (People v. Hines, 57 App. Div. 419 ; People v. Giles, 12 App. Div. 495 , 152 N. Y. 136 ; People v. Farinelli, 94 Misc. 139 .) III. The appropriate remedy is a reversal of the conviction and the granting of a new trial. (Stephens v. United States, 289 F. 2d 308 ; Brown v. United States, 314 F. 2d 293 ; United States v. Taylor, 303 F. 2d 165 .) IV. Defendant has been effectively deprived of his right to appeal in violation of the due process ' and equal protection clauses of the Federal Constitution. (McKane v. Durston, 153 U. S. 684 ; Griffin v. Illinois, 351 U. S. 12 ; People v. Pride, 3 N Y 2d 545 .)
Edward S. Silver, District Attorney (William 1. Siegel of counsel), for respondent.
No errors were committed upon the trial which affect the judgment of conviction. Moreover, appellant did not preserve the claimed error for review by this court. (People v. Friola, 11 N Y 2d 157 ; People v. Wade, 12 N Y 2d 61 ; People v. Gallo, 12 N Y 2d 12 ; McKane v. Durston, 153 U. S. 684 ; Griffin v. Illinois, 351 U. S. 12 ; People v. Pride, 3 N Y 2d 545 ; Strauss v. United States, 311 F. 2d 926 ; People v. Di Stefano, 1 N Y 2d 739 .)

Defendant argues that his conviction should have been reversed in the Appellate Division because the record on appeal in that court did not contain the summations of counsel. Apparently the summations were not taken down by the stenographer except as to one part of the prosecutor’s speech to which defendant objected and a similar incident during the summation by defense counsel. Neither of these excerpts shows any erroneous ruling or any serious misconduct. As to the argument that in every criminal cause the closing speeches of counsel must be recorded in full, the Judges of this court know from experience as well as from records filed with us that in many parts of the State (as in other States — see, for instance, Magoohan v. Curran, 71 Conn. 551 ) such has not been the practice. However, various statutes (see Code Crim. Pro., §§ 388, 456, 458, 485; Judiciary Law, § 295) if read literally require that “ the entire proceedings” of the trial be taken down stenographically.

While the present record shows an absence of prejudice to defendant from a failure to record the summations as well as an implied waiver of such recording, it would seem to be better practice in criminal causes for the Judge to order the summations to be taken down by the stenographer unless both counsel stipulate to the contrary.

The judgment should be affirmed.

Judges Dye, Fuld, Van Vooehis, Burke, Foster and Scileppi concur.

Judgment affirmed.

Cases cited

Statutes and regulations cited