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People v. Alomar, 1999 N.Y. Int. 0043 (Mar. 30, 1999).




Whether allowing the same judge to preside over the reconstruction hearing as presided over the original hearing violates a defendant's constitutional rights to due process and to confront witnesses.


No. State and federal constitutional rights are not violated because the judges were not interested parties nor witnesses, but were acting with the sole purpose of deeming the accuracy of records.


The appeal disposes of two unrelated, but similar, criminal cases. In Alomar, a reconstruction hearing was granted at the appellate level in order to reproduce the lost minutes of the voir dire hearing. The judge relied on his own recollection of the prior proceeding. In Morales, a reconstruction hearing was granted at the appellate level to clarify whether the judge had used the word "reasonable" as noted in the trial transcript. The judge settled the record by finding that the references in the transcript were errors and based this decision upon his own recollections and the testimony of the stenographer. In both cases, the judges refused to recuse themselves despite defense objections. The Appellate Division found that Defendants' motions to recuse the judges were properly denied. The Court of Appeals has found that constitutional rights to due process are not violated where the same judge presides over the trial and the reconstruction hearing because the judges were only deciding the accuracy of the records. Since there was no direct, personal, substantial, or pecuniary interest in reaching a particular conclusion, the judges correctly refused to recuse themselves. The avoidance of embarrassment and the protection of the criminal convictions as alleged by Defendants were not found to be enough of a source of potential bias on the part of the judges. Additionally, the judges were not acting in the role of witnesses against Defendants, but were only trying to ensure that their records were true. Therefore, Defendants were not deprived of any right to confront the judges as witnesses.

Prepared by the liibulletin-ny Editorial Board.