Presumptive Regularity and Reconstruction Hearings for Lost Jury-Note Transcripts:
A Comprehensive Commentary on People v. Salas (2025 NY Slip Op 03603)

1. Introduction

People v. Salas is the New York Court of Appeals’ latest pronouncement on two recurring post-conviction themes: (1) the treatment of missing stenographic minutes that potentially implicate the strict procedural safeguards of People v. O’Rama, and (2) the threshold for a hearing on ineffective assistance of counsel (IAC) claims under CPL 440.10. Christopher Salas, convicted of second-degree murder based largely on eyewitness testimony, sought reversal on direct appeal, contending that the disappearance of the transcript covering the handling of a jury note was itself a “mode-of-proceedings” error mandating automatic vacatur. Separately, he alleged that trial counsel’s failure to pursue a previously ordered Wade/Rodriguez identification hearing and certain trial missteps deprived him of effective representation.

The Court of Appeals—per Judge Singas—rejects the automatic reversal argument, clarifies that the appropriate remedy for a missing transcript touching on a purported O’Rama violation is a reconstruction hearing (subject to the defendant’s diligence), and remits for an evidentiary hearing on the IAC claim. This decision simultaneously reaffirms the “presumption of regularity” in judicial proceedings and illuminates the procedural interplay between CPL 310.30, O’Rama, Parris, and CPL 440.10.

2. Summary of the Judgment

• Mode-of-Proceedings Claim. A lost transcript of on-the-record jury-note proceedings does not, by itself, establish an O’Rama violation. Instead, the defendant’s remedy is a reconstruction hearing, provided the defendant acted diligently to secure reconstruction. The Court declines to adopt a per se rule of reversal premised solely on the absence of minutes.
• Ineffective Assistance claim. Supreme Court abused its discretion by summarily denying Salas’s CPL 440.10 motion. The record and counsel’s post-trial affirmation created factual issues regarding trial counsel’s failure to seek the ordered Wade/Rodriguez hearing and other strategic choices. The Court remits for an evidentiary hearing.
• Disposition. Appellate Division order modified: case remitted to Supreme Court (Bronx County) for the CPL 440.10 hearing; judgment otherwise affirmed.

3. Analysis

3.1 Precedents Cited and Their Role

1. People v. O’Rama, 78 NY2d 270 (1991). Established the stringent procedure for handling jury notes and classified deviations as “mode-of-proceedings” errors not requiring preservation and mandating reversal.
2. People v. Parris, 4 NY3d 41 (2004). Recognized reconstruction hearings as the remedy for lost minutes, emphasizing the presumption of regularity and the defendant’s obligation to act with diligence.
3. People v. Velasquez, 1 NY3d 44 (2003). Reiterated that judicial proceedings are presumed regular unless overcome by substantial evidence.
4. People v. Parker, 32 NY3d 49 (2018) & People v. Morrison, 32 NY3d 951 (2018). Clarified that courts’ off-the-record handling of jury notes violates O’Rama and that reconstruction is futile where the error is the absence of notice on the record.
5. People v. Harrison, 85 NY2d 794 (1995). Held that the mere loss of a stenographic record is rarely sufficient for reversal.
6. People v. Benevento, 91 NY2d 708 (1998); People v. Baldi, 54 NY2d 137 (1981); Strickland v. Washington, 466 US 668 (1984). Provided the New York and federal standards for ineffective assistance, forming the backdrop for the CPL 440.10 discussion.

3.2 The Court’s Legal Reasoning

(a) Missing Minutes and the Presumption of Regularity
The Court distinguishes two scenarios: (1) off-the-record jury-note handling (e.g., Parker), which is conclusively reversible, and (2) on-the-record proceedings that were stenographically captured but later lost. In the latter, we cannot assume error; the “presumption of regularity” attaches. The Court refuses to invert that presumption, observing that doing so would create an anomalous regime in which clerical mishaps automatically nullify convictions, even when an accurate reconstruction is possible.

(b) Reconstruction as the “Proper Remedy”
By tying the analysis to Parris, the Court emphasizes that a defendant must show (1) the materiality of the missing minutes and (2) diligent, good-faith efforts to obtain prompt reconstruction. Salas waited almost a decade and offered no explanation; thus, he forfeited the immediate right to a reconstruction hearing, and certainly could not leapfrog to automatic reversal.

(c) Ineffective Assistance and the Need for a Hearing
Counsel’s unexplained inaction regarding the Wade/Rodriguez hearing, coupled with his mid-trial misstatements that “no photographs were shown,” raised a factual question as to whether strategic reasons existed. Because these questions touch matters outside the record, summary denial under CPL 440.30(4) was an abuse of discretion. The Court thus orders a hearing, ensuring the trial record can be fleshed out with: – counsel’s file, – his communications with predecessor counsel, – any strategic memos, and – the feasibility and potential benefit of the identification hearing at the time of trial.

3.3 Probable Impact on Future Litigation

• Clarifies the Remedy Hierarchy. Litigants can no longer claim that a missing jury-note transcript itself is an O’Rama error. They must first petition for reconstruction, demonstrating diligence under Parris.
• Rebalances Preservation Incentives. Defense counsel will be incentivized to seek immediate reconstruction when minutes are missing, or risk forfeiting the argument.
• Provides Guidance to Trial Judges. Because the Court reiterates that jury-note compliance must be on the record, judges are reminded to ensure that the court reporter is present before colloquy with counsel commences.
• Bolsters CPL 440.10 Practice. Trial courts are cautioned against summary denials where affidavits raise colorable questions of strategic deficiency, especially regarding pre-trial identification procedures.
• Administrative Effects. Court reporters’ offices may face greater scrutiny and duty to document search efforts for lost notes, knowing that reconstruction, not reversal, is the likely judicial response.

4. Complex Concepts Simplified

Mode-of-Proceedings Error

Certain fundamental trial errors that affect the framework of the trial itself; they require no objection for preservation and mandate reversal.

O’Rama Procedure

The set of steps a judge must follow upon receiving a substantive jury note: display or read the note on the record in counsel’s presence, invite input, and respond in open court.

Reconstruction Hearing

An evidentiary proceeding where the parties, trial judge, court staff, and sometimes jurors attempt to recreate a lost portion of the transcript from memory and auxiliary documents.

Presumption of Regularity

A common-law principle that official acts (including judicial proceedings) are presumed to have been done correctly and lawfully unless proven otherwise.

Wade/Rodriguez Hearing

A pre-trial hearing to test the admissibility of identification evidence: Wade addresses police-arranged procedures; Rodriguez concerns confirmatory identifications by known witnesses.

CPL 440.10

New York’s post-judgment statute allowing a defendant to vacate a conviction on specified grounds, including constitutional violations like ineffective assistance.

5. Conclusion

People v. Salas harmonizes two doctrinal strands: the stringent protections surrounding jury communications and the practical reality that transcripts can be lost. By elevating reconstruction hearings—and reaffirming the presumption of regularity—the Court prevents clerical mishaps from automatically erasing convictions, yet preserves defendants’ rights by mandating reconstruction or, where impossible, reversal. Simultaneously, the decision reinforces the judiciary’s gate-keeping role in CPL 440.10 litigation, ensuring factual disputes over counsel’s performance receive a full airing. Going forward, defense counsel must be vigilant in seeking prompt reconstruction, while trial judges and court clerks must be meticulous in preserving and documenting jury-note colloquy on the record. The ruling thus strikes a measured balance between procedural integrity and finality of convictions, charting a clear path for future disputes involving lost minutes and jury-note claims.