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State v. Casimono

February 25, 1997

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROBERTO CASIMONO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County.

Approved for Publication February 25, 1997.

Before Judges Long, Skillman and Cuff. The opinion of the court was delivered by Cuff, J.A.D.

The opinion of the court was delivered by: Cuff

The opinion of the court was delivered by

CUFF, J.A.D.

Defendant Roberto Casimono appeals from the denial of his petition for post-conviction relief. Because the trial Judge reconstructed the missing record of the post-conviction relief hearing without the participation of counsel, we reverse and remand for a proper reconstruction of the record.

Defendant was convicted in 1989 of possession of a substantial amount of cocaine with the intent to distribute it, hindering apprehension, and resisting arrest. He was sentenced to a custodial term of eighteen years with a six-year period of parole ineligibility on the possession conviction and a concurrent term of five years for the hindering apprehension conviction. A consecutive one-year term was imposed for resisting arrest. The usual fines and penalties were also imposed.

This court affirmed the denial of the motion to suppress and affirmed the conviction. State v. Casimono, 250 N.J. Super. 173, 593 A.2d 827 (App. Div. 1991). The Supreme Court denied certification, 127 N.J. 558, 606 A.2d 370 (1992). Defendant's pro se petition for certiorari was denied. Next, he filed a habeas corpus petition in federal court. When this was denied, he filed this pro se petition for post-conviction relief on August 9, 1994.

The hearing was conducted on December 12, 1994. Counsel was appointed to represent defendant. After denial of his petition, defendant filed a notice of appeal, and soon thereafter it was discovered that a record of the post-conviction relief proceeding had not been made. *fn1 This court temporarily remanded this matter to the trial court to reconstruct the record pursuant to R. 2:5-3(f). Without the presence or participation of counsel for either party, the trial Judge announced his reconstruction of the record on April 2, 1996.

R. 2:5-3(f) governs reconstruction of a lost or destroyed verbatim record of proceedings. It provides:

If a verbatim record made of the proceedings has been lost, destroyed or is otherwise unavailable, the court or agency from which the appeal was taken shall supervise the reconstruction of the record. The reconstruction may be in the form of a statement of proceedings in lieu of a transcript.

[R. 2:5-3(f) (emphasis added).]

By use of the word "supervise," it is apparent that the role of the trial Judge is to oversee or superintend the work of others. It is a participatory process which involves the court and counsel. It is not the sole responsibility of the trial Judge to reconstruct the lost record.

The reference to the statement of proceedings in lieu of transcript, R. 2:5-3(f), gives some direction as to the form of the process of reconstruction of a record and underscores that the result of the process is a collective effort. In that procedure, the attorney representing the appellant prepares the list of items comprising the record and forwards it to the attorney for the respondent who has an opportunity to review the proposed statement and forward any objections or amendments to the appellant. In the event that the objections are ...


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