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People v. Smith

Other Lower Courts

August 27, 2001

The People of the State of New York, Plaintiff,
Kenneth Smith, Defendant.


Howard R. Relin, District Attorney of Monroe County (Alecia Elston of counsel), for plaintiff.

James Hinman for defendant.


Donald J. Mark, J.

This is an application by the People to correct an alleged typographical error in the grand jury transcript. The indictment charges the defendant with committing the crime of burglary in the second degree and other crimes on July 5, 2000, while the transcript reflects July 25, 2000, as the date for the commission of these crimes. After an inspection of the grand jury minutes revealed this discrepancy, the People were granted leave to amend the indictment to the latter date, but they responded that the date in the indictment was correct. This hearing followed, over the defendant's objection.

Page 216

The People characterize this proceeding as a motion to settle the record (see People v Hoppe, 239 A.D.2d 777; People v Robinson, 221 A.D.2d 1029; CPL 460.70 [1]; CPLR 5525 [c]; 22 NYCRR 1000.4 [a] [1] [ii]). [1] The defendant concedes that an indictment may be amended to conform the date therein to the date testified to before the grand jury (People v Butler, 272 A.D.2d 900, lv denied 95 N.Y.2d 864; CPL 200.70 [1]). However, he vehemently denies that there is authority for a reverse procedure, so he argues that the indictment must be dismissed as defective (see People v Velez, 144 Misc.2d 18; [2] CPL 210.35 [5]).

At the hearing the grand jury stenographer testified that she had served in that capacity for 27 years; that she had utilized a computer for two and a half years, and that the computer transcribed her stenographic notes; that she checked the transcript for typographical errors only, before she delivered it to the prosecutor; that at the prosecutor's request she checked her stenographic notes against her computer, and she discovered that the transcript inaccurately showed the date of July 25, 2000; that the correct date was July 5, 2000; that the computer transcribed the date as July 25, because she punched the numeral " 5" but had brushed the numeral " 2" ; that this brushing was responsible for the inadvertent numeral " 2" ; that the numeral " 2" showed up on the notes as a " shadow" numeral " 2" ; that there were no shadows next to the other numeral " 5" on the notes; that sometimes when she is hurried she punches a numeral instead of the spelled number; and that there is no doubt that the date in the transcript should have read " July 5, 2000" instead of " July 25, 2000."

The prosecutor testified that this criminal action was assigned to her, and she presented the case to the grand jury; that she examined the complainant in the grand jury using the crime report that reflected the date of July 5, 2000, as the date of the crimes; that she had discussed that date with the complainant and the same date appeared in the preliminary hearing transcript; and that July 5, 2000, was the date the alleged crimes occurred, and she prepared the indictment to show that date. The clerk of the grand jury testified that the notes she was required to maintain likewise disclosed the date of those crimes as being July 5, 2000.

Page 217

The testimony at the hearing demonstrated quite convincingly that the correct date of the commission of the charged crimes was July 5, 2000, and that the date in the indictment was the correct date. Thus, the only issue to be resolved is whether any procedure exists to remedy the incorrect date in the transcript of the grand jury.

Although there is apparently no decisional or statutory authority that is applicable to the settlement of a grand jury transcript, that poses no impediment to the adoption of a procedure comparable to the settlement of a record on appeal (see, e.g., People v Santorelli, 95 N.Y.2d 412, 423, for such procedure). Reliance upon the inherent power of the court in this situation would be appropriate to accomplish this (see Alvarez v Snyder, 264 A.D.2d 27, 35, lv denied 95 N.Y.2d 759, cert denied sub nom. Diaz v Snyder, 531 U.S. 1158; [3] People v Santiago, 185 Misc.2d 138, 142; People v Green, 170 Misc.2d 519, 522).

As all the applicable cases indicate, the settlement of the record on appeal is normally the responsibility of the trial judge (People v Santorelli, supra; People v Colin, 258 A.D.2d 663; People v Hoppe, supra; People v Robinson, supra; see People v Alomar, 93 N.Y.2d 239), but obviously no judge was present at the grand jury proceeding. This is not an uncorrectable deficiency, since there may be deviation from this rule when the trial judge is unavailable (People v Butler, 75 A.D.2d 754; People v Bach, 31 A.D.2d 809; Curro v Watson, 884 F.Supp. 708, affd 100 F.3d 942).

The two analogous cases of People v Velez (144 Misc.2d 18) and Curro v Watson (supra) indicate that the settlement of the grand jury transcript in the same manner as the settlement of the ...

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