Senate Bill S5166

                                BILL NUMBER:S5166

TITLE OF BILL:  An act to amend the criminal procedure law, in
relation to perfecting appeals from local criminal courts based on
mechanical or electronic recordings

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Local
Courts Advisory Committee.

This measure would amend Criminal Procedure Law sections 460.10 and
460.70 to allow appeals from local criminal courts to intermediate
appellate courts to be perfected based on a mechanical or electronic
recording of the proceedings below.

Under current law, where proceedings in a local criminal court are
transcribed by a court stenographer, appeals to an intermediate
appellate court (i.e. a County Court or an Appellate Term of Supreme
Court) are perfected by filing a notice of appeal and then settling
the transcript of the proceedings below. See CPL 460.10, 460.70(1).
Where local criminal court trial proceedings below are not transcribed
by a court stenographer, however, appeals to the County Court or an
Appellate Term of Supreme Court are perfected by filing an affidavit
of errors setting forth alleged errors or defects in the trial
proceeding. See CPL 460.10(3)(a).

              

As authorized by the Chief Judge of the State, the Chief
Administrative Judge has directed that all proceedings in a Town or
Village Justice Court be recorded by mechanical recording device. See
22 NYCRR (Rules of the Chief Judge) § 30.1; Administrative Order
(Chief Administrative Judge) 245/08. By similar authority, proceedings
in certain City Courts outside the City of New York are subject to
mechanical recording. These initiatives have created questions - and
divided judicial opinions - about whether the resulting recordings
form a basis upon which to appeal such proceedings to an intermediate
appellate court.  518-453-8650   FAX: 518-453-8683
MBLOUSTE@NYCOURTS.GOV

In People v Bartholemew, 31 Misc 3d 698 (Broome Co Ct 2011), the
County Court, sitting as an intermediate appellate court, held that a
criminal defendant appealing from an order of the Binghamton City
Court could not appeal from a mechanical recording of the City Court's
proceedings, and instead had to proceed by an affidavit of errors. The
Court held that filing and serving the affidavit of errors is a
jurisdictional prerequisite to an intermediate appellate court's
hearing of the appeal, and that failure to file the affidavit of
errors - even given a certified transcript of the proceeding below -
was a non-waivable jurisdictional defect. Id. at 701, following People
v Duggan, 69 NY2d 931 (1987); see also Cash v Maggio, Misc 3d
(Livingston Co Ct 2012) (no appeal from Justice Court to County Court
except upon affidavit of errors despite presence of mechanical record
of the proceeding below).

Conversely, in People v Schumacher, 35 Misc 3d 1206 (Sullivan Co Ct
2012), the County Court, sitting as an intermediate appellate court,
held that a criminal defendant appealing from a Justice Court could
indeed appeal using the mechanical recording of the proceeding below.


Disagreeing with the Bartholemew court, Schumacher reasoned that rigid
adherence to the provisions of CPL article 460 governing appeals from
local criminal court to an intermediate appellate court would
"undermine the spirit of the (Judiciary's proceedings-recording) Order
of 2008," which seeks to transition "local courts to a modernized and
streamlined process." Id. The court reasoned that a criminal appellant
"need not adhere to a statutory scheme that was appropriate when one
used a quill and ink to generate a subjective affidavit of errors
based on recollection of court proceedings; New York's local courts
now have an economic, accurate, and expedited way, by mechanical
recordings, to provide appellants with a transcribed record equivalent
to a stenographic recording." Id.

To promote efficiency, judicial economy and clarity among bench and
bar, this measure would codify the Schumacher result and abrogate
Bartholemew. Section one of this measure would amend CPL 460.10(1) and
460.10(2) to exempt mechanically-recorded local criminal court cases
from the need to prepare and serve an affidavit of errors as a
prerequisite for prosecuting an appeal. Section two of this measure
would harmonize the foregoing with CPL 460.70(1), governing the
settlement of transcripts in local criminal court proceedings.

Mechanical recording of local criminal court proceedings has become so
common and well-proved that a settled transcript from those recordings
is a more reliable basis to prosecute an appeal than subjectively
reconstructing trial proceedings by manual affidavit of errors.
Enacted in 1971, the existing statute governing intermediate appeals
predates mechanical recordings by decades; in the current era of
mechanical recording, the statute creates jurisdictional traps and
much inefficiency for parties and courts alike. There is no defensible
policy or practical reason that appellants possessing an accurate
recording and transcript thereof nevertheless must proceed on an
affidavit of errors, especially given that the consequence of relying
on the former is a non-waivable jurisdictional defect that can doom an
appeal. Such outcomes are especially disfavored given that, for
misdemeanors justice objectives. Because preparing an affidavit of
errors can be more costly than routine settlement of a transcript,
this measure also would promote more cost-effective access to justice
in local criminal courts in which there is no court stenographer.

Critically, nothing in this measure would change practice in superior
criminal courts or promote recording over court stenography where the
latter exists. Rather, this limited measure provides only that where a
local criminal court uses mechanical recording, a verdict or sentence
in that court is appealable by settling the transcript without resort
to an outdated affidavit of errors.

This measure, which would have no fiscal impact on state or local
governments but could reduce the cost of prosecuting local criminal
court appeals, would take effect on the first day of November next
succeeding the date on which it shall have become a law, and shall
apply to all actions in which a notice of appeal from a local criminal
court to an intermediate appellate court is filed on or after such
date.

2013-14Legislative History: OCA 2013-15 Senate 5561 (Sen. Nozzolio)
(ref to Codes)