Calendar Date: April 27, 2018Before: McCarthy, J.P., Egan Jr., Devine, Mulvey and Rumsey, JJ.__________Theodore J. Stein, Woodstock, for appellant.P. David Soares, District Attorney, Albany (Michael C.Wetmore of counsel), for respondent.__________Egan Jr., J.Appeal from a judgment of the County Court of Albany County(Herrick, J.), rendered October 15, 2015, upon a verdictconvicting defendant of the crimes of robbery in the seconddegree and grand larceny in the third degree.Defendant was charged in a four-count indictment withrobbery in the first degree (two counts), robbery in the seconddegree and grand larceny in the third degree in connection withan armed robbery in the City of Albany. Following severalhearings and a jury trial, County Court declared a mistrial inMarch 2015 after the jury was unable to reach a verdict. Asecond jury trial was subsequently conducted, whereupon defendantwas convicted of robbery in the second degree and grand larcenyin the third degree. Defendant was then sentenced, as a secondviolent felony offender, to an aggregate prison term of 10 years,to be followed by five years of postrelease supervision.Defendant now appeals.Defendant contends, among other things, that the Peopledeprived him of an opportunity to develop an effective argumenton appeal by failing to provide him with certain video andphotographic exhibits that were introduced into evidence at trialin a format that he could readily view.1 Specifically, defendantavers that, although the People provided him with copies of 14DVDs introduced as exhibits at trial, he was unable to view thecontents of exhibit Nos. 9, 10, 11, 12, 13, 14, 18 and 108.Defendant has a “fundamental right to appellate review of acriminal conviction” (People v Yavru-Sakuk, 98 NY2d 56, 59[2002]) and, to that end, it is well-settled that the People“‘must provide a record of trial sufficient to enable a defendantto present reviewable issues on appeal’” (People v Shire, 23 AD3d709, 709 [2005], lv denied 6 NY3d 852 [2006], quoting People vMealer, 57 NY2d 214, 219 [1982], cert denied 460 US 1024 [1983]).Here, there is no dispute that the subject exhibits were admittedinto evidence, were viewed by the juries at both of defendant’strials and are now a part of the record from which defendant mayprepare his appellate arguments and this Court may conductmeaningful appellate review. Based upon our own efforts to viewthese exhibits, we find defendant’s observation to have merit.Accordingly, we withhold decision and direct the People toprovide defendant’s counsel, on or before June 28, 2018, copiesof exhibit Nos. 9, 10, 11, 12, 13, 14, 18 and 108, in a formatreadily accessible by modern personal computer equipment, andprovide defendant’s counsel with the necessary instructions andprogram requirements to do so. Defendant is granted leave tofile, if he so chooses, a supplemental brief, limited to issuesarising from these exhibits, on or before July 26, 2018, in whichcase the People may file a responding brief on or before August9, 2018.McCarthy, J.P., Devine, Mulvey and Rumsey, JJ., concur.ORDERED that the decision is withheld, the People aredirected to provide defendant’s counsel with copies of trialexhibit Nos. 9, 10, 11, 12, 13, 14, 18 and 108, as indicated, andthe parties are to submit supplemental briefs, if necessary, inaccordance with this Court’s decision.ENTER:Robert D. MaybergerClerk of the Court
