The People, Respondent,v.Jamar Bethune, Appellant.

Brief

N.Y.April 27, 2017

COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- JAMAR BETHUNE, Defendant-Appellant. ------------- To be argued by: JODI L. MANDEL (15 Minutes) Kings County Indictment Number 2711/2008 APL-2015-00293 RESPONDENT'S BRIEF LEONARD JOBLOVE JODI L. MANDEL JOYCE ADOLFSEN Assistant District Attorneys of Counsel June 30, 2016 Telephone: (718) 250-2535 Facsimile: (718) 250-2549 KENNETH P. THOMPSON DISTRICT ATTORNEY KINGS COUNTY RENAISSANCE PLAZA 350 JA Y STREET BROOKLYN, NEW YORK 11201-2908 (718) 250-2000 TABLE o.F Co.NTENTS TABLE o.F AUTHo.RITIES .......................................... ii QUESTIo.NS PRESENTED ........................................... i v PRELIMINARY STATEMENT .......................................... 1 STATEMENT o.F FACTS ............................................. 3 Introduction .............................................. 3 The Trial .................................................. 3 The People's Case ....................................... 3 The Defense Case ....................................... 11 The Charge Conference, the Verdict, and the Sentence ...... 11 The Appeal and the Motion to Settle the Transcript ........ 16 Po.INT I THE TRIAL COURT PRo.PERLY SETTLED THE RECo.RD BY Co.RRECTING FIVE Wo.RDS IN THE TRIAL TRANSCRIPT THAT, ACCo.RDING TO. THE o.FFICIAL Co.URT REPo.RTER, WERE THE RESULT o.F A TRANSCRIPTION ERRo.R ........................... 22 Po.INT II DEFENDANT HAS FAILED TO. PRESERVE Fo.R APPELLATE REVIEW HIS CLAIM REGARDING THE TRIAL Co.URT'S SUPPLEMENTAL INSTRUCTIo.NS TO. THE JURY. IN ANY EVENT, THAT CLAIM IS MERITLESS, BECAUSE THE SETTLED TRANSCRIPT o.F THE TRIAL SHo.WS THAT THE ALLEGED ERRo.R DID No.T o.CCUR . ............... 36 Co.NCLUSIo.N - THE o.RDER o.F THE APPELLATE DIVISIo.N AND DEFENDANT'S JUDGMENT o.F Co.NVICTIo.N SHo.ULD BE AFFIRMED ................. 38 TABLE OF AUTHORITIES Pages CASES Illinois v. Allen, 397 U.S. 337 (1970) ........................ 33 Kentucky v. Stincer, 482 U.S. 730 (1987) ...................... 33 People v. A1omar, 93 N.Y.2d 239 (1999) .................... 22,23 People v. Bethune, 130 A.D.3d 937 (2d Dep't), Iv. granted, 26 N. Y. 3d 1038 (2015) ....................... 1, 21 People v. Buccufurri, 154 A.D. 827 (2d Dep't 1913) ............ 23 People v. Carney, 73 A.D.2d 9 (1st Dep't 1980), after remand, 86 A.D.2d 987 (1st Dep't), rev'd, 58 N.Y.2d 51 (1982) ................................... 23 People v. Gonzales, 56 N. Y. 2d 1001 (1982) . ............................. 37 People v. Keschner, 25 N.Y.3d 704 (2015) ................... 36-37 People v. Laracuente, 125 A.D.2d 705 (2d Dep't 1986) . ................ 23 Peo)21e v. Laracuente, 136 A. D. 2d 742 (2d Dep't 1988) .. ........... 30, 31 Peo)21e v. Morales, 80 N.Y.2d 450 (1992) ....................... 34 Peo)21e v. Morris, 2016 N.Y. LEXIS 1606 (June 7, 2016) ............................................... 36 Peo)21e v. Santorelli, 95 N.Y.2d 412 (2000) .... 19, 20, 23, 25, 30 Snyder v. Massachusetts, 291 U.S. 97 (1934) ................... 33 ii TABLE OF AUTHORITIES (cont'd) Pages STATUTES C.P.L. § 260.20 ................................................ 33 C.P.L. § 440.30 ................................................ 34 C.P.L. § 460.70 ................................................ 34 C.P.L. § 470.05 ................................................ 36 C.P.L.R. Rule 5525 ............................................. 25 P.L. § 125.25 ............................................ 1, 3, 15 P.L. § 265.03 ............................................ 1, 3, 16 CONSTITUTIONAL PROVISIONS N . Y. Const. art. I, § 6 ....................................... 33 N. Y. Const. art. VI, § 3 (a) ................................... 36 U.S. Const. amend. VI ......................................... 33 U.S. Const. amend. XlV ........................................ 33 RULES AND REGULATIONS Rules of Prof'l Conduct R. 3.5 .. ............................... 32 Rules of Prof' 1 Conduct R. 3.5, Comment 2 ..................... 32 iii QUESTIONS PRESENTED 1. Whether the trial court properly settled the record by correcting five words in the trial transcript that, according to the official court reporter, were the result of a transcription error I and whether the Appellate Division therefore acted properly by deciding defendant's appeal on the basis of the corrected transcript. 2. Whether defendant has failed to preserve for appellate review his claim regarding the trial court's supplemental instructions to the jury; and whether, in any event, that claim is meritless, because the settled transcript of the trial shows that the alleged error did not occur. iv COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, JAMAR BETHUNE, By order Respondent, -against- Kings County Indictment Number 27l1/2008 APL-2015-00293 Defendant-Appellant. RESPONDENT'S BRIEF PRELIMINARY STATEMENT of the Honorable Eugene M. Fahey, dated November 13, 2015, granting leave to appeal to this Court, defendant, Jamar Bethune, appeals from a July 22, 2015 order of the Appellate Division, Second Department. See People v. Bethune, 130 A.D.3d 937 (2d Dep't), Iv. granted, 26 N.Y.3d 1038 (2015) . The Appellate Division order affirmed the judgment of Supreme Court, Kings County, rendered June 16, 2009, convicting defendant, after a jury trial, of one count each of Murder in the Second Degree (P.L. § 125.25[1]) and Criminal Possession of a Weapon in the Second Degree (P.L. § 265.03[1] [b]), and sentencing him to concurrent prison terms of twenty-five years to life on the murder count and fifteen years, to be followed by five years of post-release supervision, on the weapon possession count (Tomei, J., at trial and sentence). Defendant is incarcerated pursuant to the judgment of conviction. 2 STATEMENT OF FACTS Introduction On March 13, 2008, in an apartment at Howard Avenue, in Brooklyn, defendant, Jamar Bethune, fired his revolver twice at thirteen-year-old Marquis Perez, hitting him once in the head, killing him. The shooting happened after Marquis called defendant a name and played a childish trick on defendant by hiding and then jumping out, surprising him. Defendant retrieved his loaded gun and pointed it directly at Marquis's head, pulling the trigger twice. For this crime, defendant was charged, by Kings County Indictment Number 2711/2008, with one count of Murder in the Second Degree (P.L. § 125.25[1]) and two counts of Criminal Possession of a Weapon in the Second Degree (P.L. § 265.03[1] [b], [3] ) . The Trial The People's Case On March 12, 2008, shortly after noon, EDWIN RODRIGUEZ ran into defendant, an old friend who used to live in Edwin's neighborhood. They had not seen each other for four or five months, and defendant asked Edwin if he could spend the night at Edwin's house. Defendant packed his book bag and the two took a 3 cab to Edwin's apartment, located at Howard Avenue in Brooklyn (E. Rodriguez: A.417, 421-28, 457-59).1 When they reached Edwin's apartment later that afternoon or in the early evening, Edwin's mother, VICTORIA RODRIGUEZ, was there along with Edwin's two younger sisters: J , who was fourteen, and L . Edwin's two-year-old niece v was there, as was J 's thirteen-year-old cousin Marquis, whom they called "Brother" (E. Rodriguez: A.429, 434-35, 447; J. Figueroa: A.484-85). Defendant and Edwin went to Edwin's room, where defendant pulled out from his book bag a loaded, silver and black revolver. Even before defendant opened the revolver, took out the bullets, and replaced them in the revolver, Edwin could see the gold bullets in the silver gun (E. Rodriguez: A.429-31, 460, 478-79) . After defendant replaced the bullets in the revolver, he put the revolver back in his book bag, and Edwin put the book bag behind his bed (E. Rodriguez: A.430-31, 433, 461). Edwin and defendant then spent time with J and Marquis. To Edwin's knowledge, Marquis, who was thirteen years old, and defendant, who was eighteen years old, did not know 1 Numbers preceded by "A." refer to pages of defendant's appendix. Numbers preceded by "RA. " refer to pages of the People's supplementary appendix. Names preceding the numbers refer to the witnesses whose testimony is being cited. 4 each other prior to that day (E. Rodriguez: A.433-35; J. Figueroa: A. 507). The next afternoon, on March 13, 2008, Edwin's mother was in the living room with defendant, Edwin, J , Marquis, and Edwin's two-year-01d niece, V (E. Rodriguez: A.438-39; V. Rodriguez: A.530-32, 538-39; J. Figueroa: A.485-88, 504-05,522- 23) . Edwin sat for a while and then went to his room, took defendant's gun from the book bag, and moved it to a shoe box in his sister Shaniece's room so that the little children who were running around the apartment would not find the gun. He also did not want his mother to see it (E. Rodriguez: A.439-41, 448, 465-68, 474-76; People's Exhibit 1). At some point, Edwin went to his room to change his clothes (E. Rodriguez: A.441, 471; J. Figueroa: A.488, 510). Defendant remained in the living room, playing with his telephone (J. Figueroa: A.488). After a while, Edwin's mother got up from watching television on the couch to go to the kitchen (J. Figueroa: A.488-89; V. Rodriguez: A.532). Then Marquis said to defendant, "You's a IiI nigga" and "I wash you," which meant "I will beat you up" (J. Figueroa: A.489-90, 506). When Marquis said that, defendant did not say anything, but he got up and went to Edwin's room (J. Figueroa: A.490-91, 508). 5 Defendant looked in his book bag and then asked Edwin for his gun (E. Rodriguez: A.441-42, 474, 477). Meanwhile, Marquis got up and hid behind a wall that defendant would have to pass. When defendant came by, Marquis jumped out, raised his arms and said "ah," scaring defendant (J. Figueroa: A.491-92, 513). Then Marquis sat back down on the couch where he had been sitting before and resumed watching television with J , while defendant went in the direction of Shaniece's room (J. Figueroa: A.492-93, 509, 523-24). When defendant returned to the living room from the direction of Shaniece's room, J saw defendant holding the handle of a gun in his left hand. left pocket (J. Figueroa: A.494-96, The gun was partially in his 510, 512, 514). Defendant did not say anything, nor did he ever sit down (J. Figueroa: A.496, 498, 516-17, 525-26). Instead, defendant walked straight up to Marquis, pulled out the silver and black revolver, used his right hand to pull back the "thing" at the top of the revolver, pointed the revolver at Marquis's head, and pulled the trigger, shooting him (J. Figueroa: A.494-98, 514, 525). When defendant pulled the trigger, the gun was one to two inches from Marquis's head (J. Figueroa: A.515-16, 525-26). J heard the gun fire. She then looked at Marquis, who had slumped over to the left on the couch, bleeding. J 6 heard a second shot, but she did not see where the gun was pointed because she was looking at Marquis (J. Figueroa: A.499, 515-16, 526; V. Rodriguez: A.543). J started screaming and yelling, "Brother, Brother, wake up." Marquis was bleeding from the head (J. Figueroa: A.499-500, 517-18, 520). Marquis had not touched the gun or fooled with it (J. Figueroa: A.516). Defendant then went into Edwin's bedroom and threw the gun on the bed (E. Rodriguez: A.443-45; V. Rodriguez: A.534, 536). Defendant was screaming that he did not know the gun was loaded, to which Edwin replied, "No, you going to jail." Defendant grabbed his gun and ran out the door (E. Rodriguez: A.443-46, 477-78; V. Rodriguez: A.537). When Edwin's mother saw Marquis slumped over on the couch, she called 911. An ambulance took him to Kings County Hospital, where he died two days later of a gunshot wound to his head (SOPHIA SPECHT: A.301-04, 308-10; TRACY SANDERS: A.394-95; Dr. ODETTE HALL: A.550-51, 553-57, 560). Detective JOHN ROMAN was put in charge of the investigation (Roman: A.356-59, 377-78). Defendant was apprehended within a few hours (Police Officer KEVIN DeLEON: A.322-26, 330). At 7:40 p.m., defendant was brought to the 81st Precinct, where he was placed in an interview room. At 8:00 p.m., Detective Roman spoke with him for about an hour in the presence of Detective SIDNEY STROBERT from the Brooklyn North Homicide 7 Task Force (Roman: A.360-63, 381-83; Strobert: A.402-03, 305). After defendant was advised of and waived his Miranda rights, Detective Roman spoke with defendant about the shooting (Roman: A. 362-67, 382; Strobert: A.403-04, 413; People's Exhibit 7 [Miranda warnings]). Defendant made a series of statements about the shooting. Defendant first claimed that the gun used in the shooting was already at Edwin's house and that it was Edwin and Marquis who brought the gun into the living room (Roman: A.367, 390). Defendant claimed that they were playing around with the gun, that Marquis called him a punk, that he pointed it at Marquis's head, and that the gun accidentally went off twice, striking Marquis in the head (Roman: A.367; Strobert: A.404-05). In response to follow-up questions, defendant first said that a friend had given him the gun and then that the loaded gun belonged to him and to Edwin, that they had found it the previous summer, and that, before going to Edwin's house, they had retrieved it from a backyard where they had hidden it (Roman: A.369-70, 390; Strobert: A.405). Defendant claimed that while he and Marquis were playing with it, Marquis pulled back the trigger, and when defendant went to grab the gun from Marquis, Marquis was shot in the head. Defendant claimed that when he went to get up from the sofa another shot rang out (Roman: A.370-71). Defendant was told to get out of the 8 apartment and he left, throwing the gun in the garbage in front of 186 Howard Avenue (Roman: A.371). Defendant subsequently made a written statement in which he essentially repeated what he had said in his oral statements but also claimed that he did not know whether the gun was loaded (Roman: A.371-74, 386; Strobert: A.406, 415-15 [citing both appendix pages numbered "415"]; People's Exhibit 8 [written statement]) . Later, in a video statement to Assistant District Attorney NICOLE ITKIN, defendant initially repeated essentially the same information that he had given in his earlier statements (Roman: A.374; Strobert: A.406-07; People's Exhibit 5 [DVD of recorded statement] ) . In response to questions during the video interview, defendant claimed that when he and Edwin retrieved the gun from where they had buried it, they checked and saw it was still loaded. Defendant said that the loaded gun was in his book bag in Edwin's room. Defendant claimed that Edwin unloaded it and put it, along with the bullets, in a shoebox in Edwin's sister Shaniece's room. Defendant claimed that Edwin never told defendant that Edwin had reloaded the revolver (People's Exhibit 5) • At 4: 00 a.m., ADA Itkin re-interviewed defendant, and the interview was recorded on video (Itkin: A.348). During this re- interview, defendant admitted that he had gone to get the gun 9 from Edwin's sister's bedroom and that he was the person who brought the gun into the living room. Defendant demonstrated how, sitting on Marquis's right on the couch, he tried to put the pin down and the gun went off, hitting Marquis in the right temple. Defendant claimed that he then transferred the gun from his right hand to his left hand, and when he went to get up from the couch, he accidentally put pressure on the trigger, and the gun went off a second time (Itkin: A.348-50; People's Exhibit 6 [DVD of recorded statement]). In that second video statement, defendant also amended his account about how he disposed of the gun, stating that he gave the gun to a friend named Jason, but when defendant called his friends, no one knew where the gun was (Itkin: A.348-50; People's Exhibit 6). At trial, Detective JOHN KRALJIC of the Firearms Analysis Unit of the New York Police Department, a firearms expert, described and demonstrated how a revolver operates and how to determine if a revolver is loaded (Kraljic: A.575-86, 593-94). Detective Kraljic had never investigated an accidental discharge of a revolver (Kraljic: A.600). In his expert opinion, it was unlikely, and virtually impossible, for a revolver to fire accidentally or to fire twice accidentally (Kraljic: A.601-03). 10 The Defense Case Defendant presented no witnesses and introduced no evidence at trial (A.604, 606). The Charge Conference, the Verdict, and the Sentence After the defense rested, the court asked if there were any requests to charge (A. 606-07). In addition to submitting to the jury the three counts that were charged in the indictment Murder in the Second Degree (intentionally causes death); Criminal Possession of a Weapon in the Second Degree (intent to use unlawfully against another); and Criminal Possession of a Weapon in the Second Degree (not in home or place of business) -- the court agreed to submit Manslaughter in the First Degree and Manslaughter in the Second Degree (A.607-08). On June 5, 2009, the jury announced a verdict, finding defendant guilty of Count One (Murder in the Second Degree) and Count Four (Criminal Possession of a Weapon in the Second Degree [intent to use unlawfully]), and the jury was polled on that verdict (A.686-88). However, before the jury was dismissed, the court clerk noticed that the verdict sheet was not marked as to Count Four, and the court sent the jury back to the jury room (A. 689-90) . After the jury completed the verdict sheet, the jury returned to the courtroom. The jury returned a verdict of 11 guilty on Count One, the second-degree murder count, not guilty on Count Four, the second-degree weapon possession count based upon possession with intent to use unlawfully, but guilty on Count Five, the second-degree weapon possession count based upon possession outside the home or place of business (A.690-91; A.719-20 [verdict sheet]). Defense counsel moved to set aside the verdict as repugnant, requesting that, since the jury had not yet disbanded, it should have the opportunity to reconsider all the charges. The court agreed to send the jury back to reconsider all of the counts in the indictment, stating to the attorneys out of the presence of the jury: I'm going to charge them that the verdict on count one, murder in the second degree, finding the defendant guilty of that crime, which is an intentiona12 crime, is inconsistent and repugnant to your verdict of not guilty under count four, on the indictment, criminal possession of a weapon in the second degree; the intent to use unlawfully against another. Therefore, I'm going to ask you to go back in the jury room and consider all of the counts in the said indictment. Furthermore, if you need any further instruction with respect to the particular charges in the indictment, let the Court know. 2 The word "intentional" appearing in bold here and in four other places quoting from the transcript on the next few pages of this brief is the word that the trial court corrected when it settled the transcript. The word "unintentional" was the word that originally appeared in the transcript in these five instances prior to the trial court's correction of the record. See Point I, infra. 12 (A.691-92) (emphasis added). Nei ther defense counsel nor the prosecutor objected to, or otherwise commented on, the court's proposed charge (A.691-92). The court then called for the jurors and advised them that: your [guilty] verdict on count number one, murder in the second degree, which is an intentiona1 crime intending to cause the death of another, is inconsistent and repugnant to your verdict with respect to count number four of not guilty of the crime of criminal possession of a weapon in the second degree, intent to use unlawfully against another. Consequently, this Court is going to ask you to go back into the jury room and reconsider all of the counts in light of the repugnance and inconsistency .. (A.693) (emphasis added). Again, neither defense counsel nor the prosecutor objected to, or otherwise commented on, the court's instruction (A. 693) . Before sending the jury back to the jury room, the court told the jury that the court would re- charge on the definitions of the crimes if they requested a re- charge (A. 694) . The jury sent out a note stating, "We would like definitions/clarifications of each charge again" (A.727; see A.694). The court asked the attorneys if they objected to its gi ving "the expanded charge on intent." Both attorneys said that they did not (A.694). 13 The court then brought the jurors into the courtroom, read the note aloud, and began the re-charge: The first charge is Murder in the Second Degree, intentional murder. Under our law a person is guilty of Murder in the Second Degree when with the intent to cause the death of another person he causes the death of such person. The term intent is used in this definition has its own special meaning in the law. I will now give you the meaning of that term[.] [I]ntent means conscious obj ecti ve or purpose. The intent does not require premeditation. In other words, intent does not require advance planning nor is it necessary that the intent be in a person's mind for any particular period of time. The intent can be formed and need only exist at the very moment the person engages in prohibited conduct or acts to cause the prohibited result and not at any earlier time. (A.695) (emphasis added). The court went on to explain how to determine whether a defendant had the intent required for the commission of a crime and then told the jury that, to find this defendant guilty of Murder in the Second Degree, the People were required to prove beyond a reasonable doubt: "one, that on or about March 13,2008, in the [C]ounty of Kings, the defendant Jamar Bethune caused the death of Marquis Perez by shooting him with a handgun and second he did so with the intent to cause death of Marquis Perez" (A.696). The court also instructed the jury on the other crimes that they were to consider, including both counts of Criminal Possession of a Weapon in the Second Degree (A. 696-700) . The 14 court concluded by explaining that the difference between the two weapon possession counts is that "there is no intent element in the last count, the fifth countH (A.700). After the jury resumed deliberations, defense counsel requested that the court explain to the jury that unlike the first and second counts, the third count, Manslaughter in the Second Degree, like the fifth count, does not require intent, that "it is a reckless act rather than an intentional one H (A.700) (emphasis added). In response to the prosecutor's argument that this additional explanation was unnecessary, defense counsel repeated his view that "man two obviously is a reckless act and not and [sic] intentional one. But, murder two and man one are intentional acts. And, I submit that if you are going to give a contrast between four and five, the same logic should be followed in murder two and man one and manslaughter twoH (A.702) (emphasis added). Meanwhile, the jury, after hearing the re-charge on the crimes listed on the verdict sheet, resumed deliberations. Before the court could respond to defense counsel's request with an additional instruction, the jury sent out a note stating: "Based on what you've advised us re the difference between 'intent' & 'premeditation,' we've revised our verdict H (A.728; see A. 702) . The jury convicted defendant of second-degree murder (P.L. § 125.25[1]) and second-degree criminal possession 15 of a weapon (P.L. § 265.03 [1] [b]) (intent to use unlawfully) (A.703-05; A.725-26 [verdict sheet]). On June 16, 2009, the court sentenced defendant to concurrent terms of imprisonment of twenty-five years to life on the murder count and fifteen years, plus five years of post- release supervision, on the weapon possession count (A.716-17). The Appeal and the Motion to Settle the Transcript Defendant filed a notice of appeal from the judgment of conviction. Defendant subsequently filed in the Appellate Division, Second Department, a motion for a copy of the transcripts of the stenographic minutes, without charge. By an order dated November 24, 2009, the Appellate Division granted that motion (RA. 4-5) . That order directed, in relevant part: that the stenographer of the trial court promptly make, certify, and file two transcripts of the trial; that the Clerk of the trial court furnish one certified transcript of the proceedings to defendant's counsel, without charge; and that defendant's counsel turn over that transcript to the People when counsel served defendant's brief on the People (RA.4-5). In March 2014, defendant perfected his appeal to the Appellate Division. In his brief, defendant asserted, in relevant part, a claim that the trial court erred in its re-charge to the jury, which was delivered as a result of the jury's initial 16 allegedly repugnant verdict. Defendant claimed that the trial court erred by instructing the jury that second-degree murder was an "unintentional" crime rather than an "intentional" crime. Defendant argued that the trial court misstated the legal principle, thereby eliminating the People's burden of proof on the intentional murder count. In the transcript that had been provided to defendant and that accompanied his brief, the word "unintentional" appeared a total of fi ve times. Three of those times, the word "unintentional" was allegedly spoken by the trial court: once in the presence of the attorneys and defendant prior to the actual re-charge of the jury (A.692, line 3), and twice during the re- charge itself (A.693, line 16; A.695, line 7). The two additional times that the word "unintentional" appeared, it was allegedly spoken by defendant's trial counsel (A.700, line 25; A.702, line 5) . The assistant district attorney who was responsible for evaluating and assigning all of the briefs that were received by the Appeals Bureau reviewed the transcript and concluded that the appearance of the word "unintentional" in the transcript may have been the result of typographical errors. That ADA contacted the official court reporter who had recorded defendant's trial and who had prepared the transcript at issue. In March 2014, that ADA asked the court reporter to compare her stenographic 17 notes regarding defendant's trial with the transcript that she had initially provided (RA.IO-ll [People's Affirmation in Support of Motion to Settle Transcript) at para. 10). The court reporter reviewed her notes and informed the ADA that she had in fact erred in her transcription, and that, with respect to each of the five times that she typed the word "unintentional," her notes clearly indicated that the word actually spoken was "intentional." The court reporter then provided the ADA with a corrected version of the transcript from pages 472 to 505 (RA.ll at para. 11; RA.38-72). After the court reporter informed the ADA about these typographical errors in the trial transcript, the ADA informed defendant's appellate attorney about the errors. The ADA sent defendant's appellate attorney a copy of the corrected transcript, pointing out that in addition to the acknowledgment by the court reporter that the transcript was in error, the context of the typographical errors, including the fact that the errors were present when the court was speaking- as well as when defense counsel was speaking, made it obvious that the five instances in which the word "unintentional" appeared were the result of typographical errors. The ADA asked defendant's appellate attorney if he would stipulate to the accuracy of the corrected transcript, but he declined to so stipulate (RA.ll at para. 12). 18 On May 27, 2014, the People filed in the Supreme Court, Kings County, a motion to settle the transcript (RA.6-72). Defendant's appellate attorney opposed the motion (RA.73-92). On June 6, 2014, the attorneys appeared before the trial judge regarding the motion to settle the transcript. The ADA stated that the purpose of the motion was to settle the transcript so that defendant's appeal could be heard on a correct and true record (A.730). To that end, the People provided a certified corrected transcript of the relevant pages prepared by the official court reporter. In addition, the People offered to obtain an affidavit from the official court reporter. The People also pointed out that, read in context, the word "unintentional" in each instance was plainly a typographical error (A.729-31). Citing People v. Santorelli, 95 N.Y.2d 412 (2000), the People argued that given the certified corrected transcript, the context surrounding the word "unintentional" in each instance, and the court's own recollection of what occurred at trial, the court had the discretion to correct the record without the need for a reconstruction hearing (A.730-33). Defense counsel disagreed and argued that defendant would be prejudiced unless there was a reconstruction hearing at which the court reporter 19 could testify (A.733-34).3 The court determined that the word "unintentional" was a typographical error in each instance. Relying on Santorelli, the court declined to order a reconstruction hearing and issued an order granting the motion to settle the transcript based upon the court's review of the transcript originally provided by the official court reporter, the corrected portion of the transcript certified by that court reporter, and the court's own recollection of the trial proceedings. The court further ordered that the corrected transcript be forwarded to the Appellate Division, Second Department, for its consideration of the appeal (A.734-35, 737; RA.93-94 [order granting motion to settle transcript]). Defendant subsequently filed an amended brief on his appeal to the Appellate Division, asserting, in relevant part: (1) that the trial court erred by settling the trial transcript; and (2) on the basis of the unsettled transcript, that the trial court 3 Defense counsel, in arguing that the instances of the word "unintentional" were not typographical errors, but, rather, that the court had misspoken and the misspeaking had led to the jury's confusion, pointed to the jury's request for clarification of all charges after it had resumed deliberations following its allegedly repugnant verdict. The People responded that the jury's confusion arose prior to that verdict, after the jury had been correctly charged on intent in the court's main charge, which was long before the supplemental charge in the portion of the transcript at issue (A.735-37). 20 violated defendant's due process right to a fair trial by giving erroneous supplemental jury instructions on intent. On July 22, 2015, the Appellate Division unanimously affirmed the judgment of conviction (RA.2-3). People v. Bethune, 130 A.D.3d 937 (2d Dep't 2015). The Appellate Division concluded that the trial transcript had been properly resettled to reflect that the portions of charge that defendant sought to challenge on appeal represented transcription errors (RA.2). 130 A.D.3d at 937. In a certificate dated November 13, 2015, defendant was granted leave to appeal to this Court from the order of the Appellate Division (RA.1). (2015) (Fahey, J.). People v. Bethune, 26 N.Y.3d 1038 21 POINT I THE TRIAL COURT PROPERLY SETTLED THE RECORD BY CORRECTING FIVE WORDS IN THE TRIAL TRANSCRIPT THAT, ACCORDING TO THE OFFICIAL COURT REPORTER, WERE THE RESULT OF A TRANSCRIPTION ERROR. After defendant served on the People a transcript of the trial in this case, the People filed in the trial court a motion, on notice to defendant, to settle the record. Following oral argument on that motion, the trial court settled the record by ordering that the word "unintentional," which appeared five times in the original certified transcript provided by the official court reporter, should be changed to the word "intentional," in accordance with the court reporter's statement that the inclusion of the word "unintentional" was the result of a transcription error. By ordering those changes in the transcript, the court properly exercised its authority to settle the record. contrary to defendant's contention, the court was not required to conduct any further hearing before settling the record. Therefore, the Appellate Division acted properly when it decided defendant's appeal on the basis of the corrected transcript. Trial judges are responsible for "passing upon the accuracy of the records of proceedings before them," and the trial judge is "the final arbiter of the record." People v. Alomar, 93 N.Y.2d 239, 245, 247 (1999). Thus, the trial court has the 22 authori ty to settle the record. Id. at 247; see People v. Carney, 73 A.D.2d 9, 12 (1st Dep't 1980), after remand, 86 A.D.2d 987 (1st Dep't), rev'd on other grounds, 58 N.Y.2d 51 (1982) . Because the trial court has the ultimate authority to settle the record, that court has the authority to find that the transcript prepared by the court reporter is incorrect and to correct it: [A] party to an appeal is entitled to have his case show the facts as they really happened on the trial, and should not be prejudiced by an error or an omission of the stenographer. People v. Laracuente, 125 A.D.2d 705, 706 (2d Dep't 1986) (quoting People v. Buccufurri, 154 A.D. 827, 828 [2d Dep't 1913]) . In settling the transcript, the trial judge may rely on his notes and his recollection of what occurred, as well as "any other means which may satisfy him," including the stenographer's minutes. Buccufurri, 154 A.D. at 828-29. In some cases, settlement of the record may require a hearing. However, "[n]ot every dispute about the record mandates a reconstruction hearing." People v. Santorelli, 95 N.Y.2d 412, 424 (2000) (emphasis in original) . The trial court has the discretion to determine whether a reconstruction hearing is necessary to settle a record, and that determination may be reviewed by this Court only for an abuse of that discretion. See id. 23 In this case, on a motion brought by the People to settle the transcript, the trial court properly settled the transcript by correcting what the court found to be five typographical errors, which were certified by the official court reporter to be typographical errors. All five of the errors involved the word "unintentional. ,,4 That word appeared a total of five times in the relevant portion of the original transcript. Three of those times, the word "unintentional" was allegedly spoken by the trial court: once in the presence of the attorneys and defendant prior to the actual re-charge of the jury (A.692, line 3), and twice during the re-charge itself (A.693, line 16; A.695, line 7). The two additional times that the word "unintentional" appeared, it was allegedly spoken by defendant's attorney (A.700, line 25; 4 Defendant also points to what is probably an additional typographical error: the word "accident" in the court's supplemental charge on first-degree manslaughter (A. 697) ("Jamar Bethune caused the accident of Marquis Perez"). Defendant claims that the fact that the word "accident" was not also found to be a typographical error by the court reporter and corrected by the court in the settled transcript supports his view that the court actually misspoke and told the jury that intentional murder was an "unintentional crime" (Defendant's Brief at 25- 26) . Defendant's argument is meritless. The court reporter was asked to review her stenographic notes for five possible typographical errors, all of which were instances where the word "unintentional" appeared in the transcript. The reporter reviewed those five instances and found that in each instance, the word in her stenographic notes was actually "intentional" (RA.I0-ll at paras. 9, 10, 11). Thus, the court reporter corrected the five typographical errors to which her attention had been directed. Any other possible typographical errors in the record remain. 24 A.702, line 5). In no instance was there an objection to the word that was spoken. After oral argument on the People's motion to settle the transcript, the trial court, relying on People v. Santorelli, 95 N.Y.2d 412 (2000), declined to order a reconstruction hearing and issued an order granting the motion to settle the transcript based upon the court's review of the transcript originally provided by the official court reporter, the court's review of the corrected portion of the transcript certified by that same court reporter, the affirmations of the assistant district attorney and defense counsel, and the court's own recollection of the trial proceedings. The trial court properly exercised its discretion in settling the transcript as it did, and the court was not required to hold a further hearing. 5 First, the court was entitled to rely on the certified 5 Defendant repeatedly states that the People's motion sought to "resettle" the record (Defendant's Brief at 20, 22, 26, 28) (emphasis added), or sought "~settlement" of the record (id. at 21, 26, 30) (emphasis added), but those statements are incorrect, because, prior to the proceedings on the People's motion, the people had had no other opportunity to seek settlement of the record. Rather, pursuant to the order of the Appellate Division, defendant's counsel had not provided the transcript of the proceedings to the People until he served the People with defendant's brief. Thus, the People's motion, and the order granting that motion, correctly characterized the motion as seeking to "settle" the transcript. Cf. C.P.L.R. Rule 5525 (c) (procedure for settlement of transcript requires that, within fifteen days after receiving transcript, appellant shall serve on respondent copy of transcript with proposed amendments) . 25 corrected copy of the transcript. At the request of an assistant district attorney who had reviewed the transcript that was served on the People by defense counsel, the court reporter reviewed her notes and informed the assistant district attorney that she had in fact erred in her transcription of her stenographic notes, and that, with respect to each of the five times that she typed the word ftunintentional," her notes clearly indicated that the word actually spoken was ftintentional." This acknowledgment by the court reporter of her transcription error was recounted in the assistant district attorney's affirmation in support of the motion to settle the transcript, and a copy of the certified corrected pages of the transcript was submitted with that affirmation (RA.ll at para. 11; RA.38-72). The People offered to obtain an affidavit from the court reporter (A.731), but the court apparently did not deem it necessary to obtain an affidavi t, relying instead on the affirmation of the assistant district attorney and the certified corrected copy of the transcript. In addition, the trial court considered the context of the word ftunintentional," in the five places where it appeared in the relevant portion of the transcript, and concluded, as the court reporter stated, that, in each instance, the word ftunintentional" was the result of a typographical error and the word actually uttered was the word ftintentional." 26 The first three times the word "unintentional" was allegedly spoken, it was spoken by the trial court: once in the presence of the attorneys and defendant prior to the actual re-charge of the jury (A.692, line 3), and twice during the re-charge itself (A.693, line 16; A.695, line 7). The first time the word "unintentional" was allegedly spoken, the trial court was telling the attorneys how it intended to explain to the jury that their initial verdict was repugnant: I'm going to charge them that the verdict on count one, murder in the second degree, finding the defendant guilty of that crime, which is an unintentional crime, is inconsistent and repugnant to your verdict of not guilty under count four, on the indictment, criminal possession of a weapon in the second degree; the intent to use unlawfully against another. (A.691-92) (emphasis added). The second time the word "unintentional" was allegedly spoken by the court was just before the jury was sent back to reconsider the allegedly repugnant verdict: [Y]our [guilty] verdict on count number one, murder in the second degree, which is an unintentional crime intending to cause the death of another, is inconsistent and repugnant to your verdict with respect to count number four of not guilty of the crime of criminal possession of a weapon in the second degree, intent to use unlawfully against another. (A.693) (emphasis added). The third time the word "unintentional" was allegedly spoken 27 by the court was at the beginning of an otherwise correct and thorough instruction on intent given after a jury request for definitions: The first charge is Murder in the Second Degree, unintentional murder. Under our law a person is guilty of Murder in the Second Degree when with the intent to cause the death of another person he causes the death of such person. The term intent used in this definition has its own special meaning in the law. I will now give you the meaning of that term (A.695) (emphasis added). The context in which the word "unintentional" appears in each of these three instances supports the court reporter's statement to the assistant district attorney, and the court's finding, that the court actually said "intentional." For example, in the last of these three instances, saying that Murder in the Second Degree is "unintentional" murder, but following up in the next several sentences with a correct and complete definition of second-degree murder as well as with a correct and complete expanded definition of the element of intent (A.695-96), would make no sense. In addition, in all three instances, the word at issue was spoken without objection. Had the court actually said "unintentional," an obj ection would surely have been raised to one, if not all, of these instances. The fact that there was no obj ection further supports the court reporter's statement to the assistant district attorney, and the court's finding, that the 28 court actually said -intentional" in every instance. The final two times that the word -unintentional" appeared in the original transcript, that word was allegedly spoken by defense counsel, outside the presence of the jury, in requesting that the court explain to the jury that unlike the first and second counts, the third count, Manslaughter in the Second Degree, like the fifth count, does not require intent, that -it is a reckless act rather than an unintentional one" (A.700) (emphasis added). No one corrected defense counsel. Then, in response to the prosecutor's argument, defense counsel repeated his view that -man two is a reckless act and not and [sic] unintentional one" (A.702) (emphasis added). It is implausible that defense counsel, as well as the court, would have repeatedly made the same, obvious misstatement of law. Thus, in support of the trial court's finding that, with respect to each of the five instances where the word -unintentional" appeared in the original transcript, the word actually spoken was the word - intentional," it was proper for the court to rely in part on the context in which the word at issue was spoken (A.734-35). The trial court also relied, in part, on its own recollection of the trial proceedings as a basis for the decision to grant the motion to settle the transcript. During the oral argument on the motion, the court stated that, in light 29 of this Court's decision in Santorelli, a reconstruction hearing was not necessary "if there is enough evidence, based upon the Court's recollection and supporting evidence, to show that that [sic] the word unintentional really was the word intentional" (A.734) (emphasis added), and the court concluded that "where the words unintentional appear, the Court did say intentional" (A. 735) . Those statements show that the court relied, in part, on its own recollection of the trial proceedings as a basis for its decision. In addition, in the order granting the motion to settle the transcript, the court stated explicitly that it was relying in part on "the Court's own recollection of the trial proceedings" (RA.93-94). The fact that the court relied in part on its own recollection of the proceedings supported the court's conclusion that a further hearing was not necessary. See Santorelli, 95 N.Y.2d at 424. Defendant's reliance on People v. Laracuente, 136 A.D.2d 742 (2d Dep't 1988) (see Defendant's Brief at 27, 29), is misplaced. In Laracuente, at the time of the hearing to settle the transcript, the court reporter's notes were missing and neither the court nor the court reporter had an independent recollection of what had actually happened. In that case, where the trial court effectuated extensive revisions of the transcript without specifying the source of its revisions, where the revisions were made despite the absence of any recollections of the trial by the 30 court or by the court reporter, and where those revisions were made in the absence of relevant notes, the Second Department had reason to question whether the transcript that was ultimately produced accurately reflected what had transpired at trial. Laracuente, 136 A.D.2d at 743-44. Here, by stark contrast, the official court reporter reviewed her stenographic notes and found that she had in fact erred in her transcription, and that, with respect to each of the five times she typed the word "unintentional," her notes clearly showed that the word actually spoken was "intentional." Moreover, the context provided additional assurance that, in each instance, the word actually spoken was "intentional." Thus, here, there is no reason to question the accuracy of the court reporter's certified corrected transcript, and the trial court was entitled to find that the corrected transcript was accurate, without having to conduct a further hearing. Defendant refers to the prosecutor's communications with the court reporter as "ex parte," suggesting that these communications were unethical (see Defendant's Brief at 27; see also A. 734), but that suggestion is incorrect. The Rules of Professional Conduct provide, in relevant part, that: "A lawyer shall not in an adversarial proceeding communicate as to the merits of the matter with a judge or official of a tribunal or an employee thereof before whom the matter is 31 pending, except orally, upon adequate notice to counsel for the other parties " Rules of Prof'l Conduct R. 3.5 (a) (2) (iii). That rule may prohibit ex parte communications with a judge's law clerk, because, when a matter is pending before a judge, the law clerk participates with the judge in the adj udicati ve process and thus is a court employee "before whom the matter is pending"; but, by contrast, that rule does not prohibit ex parte communications with a court reporter, because the court reporter does not participate in the adjudicative process and thus is not a court employee "before whom the matter is pending." See Rules of Prof'l Conduct R. 3.5, Comment 2 (as amended through Mar. 28, 2015) ("a lawyer is prohibited from communicating ex parte with persons serving in a judicial capacity in an adjudicative proceeding, such as judges, masters or jurors, or to employees who assist them, such as law clerks" [citation omitted]). In this case, the prospective motion to settle the transcript was decided by the judge, and the court reporter was, in effect, a witness to the proceedings with respect to which the judge would settle the record. A lawyer is not prohibited from communicating ex parte with a potential witness merely because the witness is a court employee. In addition, at the time of the prosecutor's communications with the court reporter, no matter regarding this case was pending before the court by 32 which the court reporter was employed, because those communications preceded the filing of the motion to settle the transcript; and, for that reason as well, the prosecutor's communications with the court reporter were not prohibited by the Rules of Professional Conduct. In any event, the ethical propriety or impropriety of the prosecutor's communication with the court reporter would have no bearing on the trial judge's authority to settle the record. Finally, contrary to defendant's contention (Defendant's Brief at 29-30), defendant did not have a right to be present at the argument on the motion to settle the transcript. Under the Federal Constitution, a criminal defendant has a right "to be present in the courtroom at every stage of his trial" (Illinois v. Allen, 397 U.S. 337, 338 [1970]), "whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge." Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934); accord Kentucky v. Stincer, 482 U.S. 730, 745 (1987); see U.S. Const. amends. VI, XIV. Under New York law, a defendant "must be personally present during the trial of an indictment." C.P.L. § 260.20; see N.Y. Const. art. I, § 6 (accused shall be allowed to appear and defend in person "[i] n any trial in any court whatever"). The word "trial" in C.P.L. § 260.20 includes "impaneling the jury, the introduction of evidence, the summing up of counsel, 33 and the charge of the court to the jury, receiving and recording the verdict." People v. Morales, 80 N.Y.2d 450, 455-56 (1992) (quotation marks and citations omitted). The oral argument on the motion to settle the transcript did not constitute a part of defendant's trial. Rather, that proceeding, which took place five years after the jury rendered its verdict, constituted a part of the appellate process. See C.P.L. § 460.70(1) (when a defendant takes an appeal from a judgment of conviction, "a transcript shall be prepared and settled") . Thus, the right to be present at trial did not include a right to be present at the argument on the motion to settle the transcript. Moreover, in the absence of a statutory provision that expressly confers a right to be present at a post-trial proceeding, a defendant has no such right to be present. Cf. C.P.L. § 440.30(5) (defendant has right to be present at evidentiary hearing on motion to vacate judgment). In sum, the trial judge properly settled the transcript by correcting words that the judge found to be the result of a transcription error, and the Appellate Division properly relied on 34 the corrected transcript when that court decided defendant's appeal. 6 6 Even if defendant were to prevail on his claim that the trial court was required to conduct further proceedings before settling the record, the proper remedy would not be, as defendant suggests, to order that defendant's appeal be "decided on the original certified transcripts" (Defendant's Brief at 30), but rather would be to remit the case to the trial court for any further proceedings that are required regarding the motion to settle the transcript. After any such further proceedings on that motion, the trial court might still conclude that the word actually spoken was "intentional," not "unintentional." In that event, the appeal would still have to be decided on the corrected transcript rather than on the original transcript. 35 POINT II DEFENDANT HAS FAILED TO PRESERVE FOR APPELLATE REVIEW HIS CLAIM REGARDING THE TRIAL COURT'S SUPPLEMENTAL INSTRUCTIONS TO THE JURY. IN ANY EVENT, THAT CLAIM IS MERITLESS, BECAUSE THE SETTLED TRANSCRIPT OF THE TRIAL SHOWS THAT THE ALLEGED ERROR DID NOT OCCUR. Defendant claims that the trial court erred by allegedly instructing the jury that Murder in the Second Degree is an "unintentional" crime and by referring to that crime as "unintentional" murder. That claim should be rejected for two separate reasons. First, defendant has failed to preserve the claim for appellate review. When, in supplemental instructions to the jury, the trial court allegedly stated that Murder in the Second Degree "is an unintentional crime" (A.693) and allegedly referred to Murder in the Second Degree as "unintentional murder" (A.695), defense counsel did not object to those instructions. Consequently, defendant's claim that those alleged instructions were erroneous -- which claim he asserted for the first time on appeal -- is unpreserved and beyond the review of this Court. See N.Y. Const. art. VI, § 3(a); C.P.L. § 470.05(2); People v. Morris, 2016 N.Y. LEXIS 1606, at *2-*3 (June 7, 2016) (claim of error in trial court's supplemental instructions to deliberating jury must be preserved for appellate review with timely objection); People v. Keschner, 25 36 N.Y.3d 704, 721-22 (2015); People v. Gonzales, 56 N.Y.2d 1001 (1982) . Second, defendant's claim regarding the court's instructions is meritless, because that claim is not supported by the settled record of the trial. Defendant's claim rests on the premise that the trial court stated to the jury that Murder in the Second Degree "is an unintentional crime" (A. 693) (emphasis added) and referred to Murder in the Second Degree as "unintentional murder" (A.695) (emphasis added). Defendant's assertion that the trial court made those statements is based solely on the original, uncorrected transcript that was prepared by the official court reporter, but that assertion disregards the fact that the trial court settled the transcript by ordering that the word "intentional" be substi tuted for the word "unintentional" at each of those locations in the transcript. Moreover, that settlement of the record was proper (see Point I, supra) . In light of the instructions that the settled record shows were actually given namely, that the court stated to the jury that Murder in the Second Degree "is an intentional crime" (emphasis added) and referred to Murder in the Second Degree as "intentional murder" (emphasis added) the instructions were entirely correct and defendant's claim to the contrary is meritless. 37 CONCLUSION THE ORDER OF THE APPELLATE DIVISION AND DEFENDANT'S JUDGMENT OF CONVICTION SHOULD BE AFFIRMED. Dated: Brooklyn, New York June 30, 2016 gy/~tZ(~/