Conford, Freund and Sullivan. The opinion of the court was delivered by Sullivan, J.A.D.
This is an appeal from a conviction of rape.
Defendant was indicted on a charge of rape and pleaded not guilty. After a three-day jury trial held on April 30, May 1 and May 4, 1959, he was found guilty of the charge. On May 20, 1959 he was sentenced to a term of 12 to 15 years in the New Jersey State Prison.
On August 5, 1959 defendant filed a notice of appeal with the Essex County Clerk. Unfortunately, the pendency of the appeal was not noticed for some period of time. In 1961 defendant applied for leave to appeal as an indigent and his application was denied. On February 27, 1962 he repetitioned for leave and this court granted the second petition and assigned present counsel to prosecute the appeal. Subsequently counsel obtained court orders directing the preparation and filing of the transcript of the record, testimony and proceedings at the trial.
The proceedings at defendant's trial were stenographically recorded by two court reporters: Miss Olga Blum and Mr. John P. Murray. Miss Blum's notes recorded the first day of trial and included the voir dire , openings and direct examination of the complaining witness. Mr. Murray recorded the remaining two days of trial as well as the proceedings on the day of sentencing.
After the order directing the preparation and filing of the transcript had been entered, Miss Blum informed counsel and the clerk of the court that her stenographic notes had been destroyed in a fire occurring at her home in December 1959. Mr. Murray filed a transcript of the last two days of the trial.
On February 11, 1963 defendant's attorney moved for a new trial on the ground that in the absence of a complete and accurate record of the trial below, this court could not review the points of error raised by the appeal. On March 20, 1963 the motion was denied without prejudice and the State's motion for a reconstruction of the destroyed record was granted. In essence, this court ordered that the State and
defendant each prepare a statement of the substance of the proceedings of the first day of trial; that both statements be submitted to the trial judge; and that the trial judge, after a hearing on notice to both parties, "settle and certify" a final statement of the said proceedings.
On May 10, 1963, after receiving the State's and defendant's statements, the trial judge prepared a tentative "Certified Statement of Proceedings of the First Day of Trial" and held a hearing in the presence of the prosecutor, defendant and his counsel for the purpose of affording the parties an opportunity to present any other evidence material thereto. Finding no reason at the hearing to change the tentative "Certified Statement," the judge adopted it and submitted it to this court as part of the trial record on this appeal. In his "Certified Statement," the trial judge stated that he had destroyed his trial notes and that the statement was based upon "the Court's recollection, after reviewing the statement and counter-statement of the parties, the Court's charge, notes, sentence notes, and the Court Clerk's Daily Minutes."
On October 14, 1963 defendant's attorney renewed his motion before this court for a new trial on the additional ground that the procedure adopted for settlement of the record below, and the results of the settlement, were inadequate for the purpose of judicial review as a matter of due process. Ultimately, defendant was directed to proceed with the appeal without prejudice to his right to argue on appeal that the procedure used to reconstruct the record, or its result, did not satisfy his legal and constitutional right to have the appeal heard on an adequate record.
Defendant advances two arguments in support of his request for a new trial. First, he contends that the procedure adopted for the reconstruction of the trial record, as well as the result thereof, violates due process because he is deprived of a complete review on an adequate record. Second, defendant argues that he was substantially prejudiced at his trial by the admission into ...