SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT
June 27, 1968
THE PEOPLE OF THE STATE OF NEW YORK EX REL. JOHN KOVALESKI, APPELLANT,
DANIEL J. MCMANN, AS WARDEN OF CLINTON PRISON, RESPONDENT
Gibson, P. J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Herlihy, J.
Appeal by the relator from a judgment of the Supreme Court at Special Term which denied a writ of habeas corpus. The appellant contended that his original sentence had been improperly modified in that he was not before the court at the time of modification (Code Crim. Pro., § 473). Upon this appeal the respondent has submitted a certified copy of the minutes of the resentencing. These minutes show that the appellant and his counsel were before the court at that time and further, that there was no denial of any of the appellant's rights. However, in this case the certification indicates the transcription was made by the present court reporter from the notes of a previous reporter, now deceased. The present reporter can attest only to the accuracy of the transcription, not to the accuracy of the untranscribed notes. This seems to take the offered evidence out of the realm of the unanswerable and uncontrovertible and a hearing should be had to determine its probative value.
Judgment reversed, on the law and the facts, without costs, and petition granted.
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