People v. Boyd

—Judgments, Supreme Court, New York County (Alvin Schlesinger, J.), rendered December 21, 1992, convicting defendants Gilberth and Boyd, after a jury trial, of burglary in the third degree, and sentencing them, as a second felony offenders, to terms of 3 to 6 years and 2½ to 5 years, respectively, unanimously affirmed.

Subsequent to trial, a surveillance tape which was part of the trial evidence was inadvertently lost. After this Court, on motion, ordered a reconstruction hearing, the parties instead entered into a stipulation with respect to the contents of the tape. Contrary to defendants’ claims, the stipulation, coupled *195with the minutes and other evidence from the trial, provides a sufficient record for this Court to ascertain that their guilt was proven beyond a reasonable doubt and that the verdict was not against the weight of the evidence (People v Glass, 43 NY2d 283, 286; People v Bleakley, 69 NY2d 490). Indeed, the circumstantial evidence of guilt, notably the similarity of modus operandi, was overwhelming.

Jury selection in this case was completed on October 27, 1992. We reject defendant Gilberth’s claim based upon People v Antommarchi (80 NY2d 247), because that decision applies only to cases decided after that date (People v Mitchell, 80 NY2d 519, 529).

Appeal from judgment of February 18, 1993 permitted to be withdrawn as per stipulation of September 13, 1995. Concur— Rosenberger, J. P., Wallach, Rubin, Kupferman and Mazzarelli, JJ.