BILL NUMBER:  S5069

 TITLE OF BILL :  An act to amend the criminal procedure law, in
relation to procedures for taking an appeal from a court that is not
designated a court of record

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Advisory
Committee on Criminal Law and Procedure.

This measure would amend the Criminal Procedure Law to facilitate
appeals from local criminal courts where proceedings are recorded by
electronic means instead of by a stenographer. This amendment would
allow the parties time to secure a transcript of an electronically
recorded proceeding before filing an affidavit of errors.

An appeal taken from a court where the underlying proceedings were not
recorded by a court stenographer must be made by filing an "affidavit
of errors" with the local criminal court within 30 days after entry or
imposition of the judgment (CPL 460.10(3)(a)). The "affidavit of
errors" is a statement by defendant's appellate counsel outlining the
alleged trial errors which justify the relief sought on appeal.
Thereafter, the local criminal court must file with the appropriate
appellate court both the affidavit of errors and the court's return
(CPL 410.60(3)(d)). Because there is no stenographic record of the
proceedings, this procedure ensures that the appellate court will have
              

an adequate basis to review the lower court proceedings. The current
statute requires that the "court's return must set forth or summarize
evidence, facts or occurrences in or adduced at the proceedings
resulting in the judgment, sentence or order, which constitute the
factual foundation for the contentions alleged in the affidavit of
errors." (id.)

However, this statutory procedure became somewhat outmoded when the
Unified Court System, as part of its Action Plan for the Justice
Courts, installed electronic recording devices in every court in the
state not designated a court of record.* Effective June 16, 2008,
these courts were required to mechanically record all proceedings. As
a result, there now is a contemporaneous record that can be
transcribed and submitted to the appellate court. For years, many have
considered these recordings the functional equivalent of stenographic
notes and, for purposes of appeal, used them in the same manner as
transcribed stenographic notes. This position served two purposes: (1)
it ended the need for an affidavit of errors because there was a
record from which to appeal; and (2) it reduced the cost to localities
by allowing indigent defendants to get transcribed minutes of the
electronic recording "as a state charge paid out of funds appropriated
to the office of court administration for that purpose" (see CPL
460.70(1)).

However, the Court of Appeals recently held that a transcript from an
electronic recording may not be considered the functional equivalent
of transcribed stenographic notes, and that an appeal from proceedings
where no stenographer is present must still be taken by filing an
affidavit of errors with the trial court (People v Smith, 27 N.Y.3d
643 (2016)). The Court held that CPL 460.10 "is free from ambiguity"
and an appeal with a transcribed recording instead of by an affidavit
of errors is a jurisdictional defect requiring dismissal of the appeal
(27 N.Y.3d 643 at 649). The ruling has resulted in significant
difficulty for appellate practitioners because, in most cases, the
deadline for filing the affidavit of errors will likely require it to
be submitted before the appealing party can secure a transcribed copy
of the electronic recording, thus making it difficult for any attorney
to file an appeal who was not present at the underlying proceedings.


In the wake of the Smith decision, there have been calls for a
wholesale reform of the procedure involving an affidavit of errors.
On the recommendation of our Advisory Committee, however, we have
concluded that rather than reform of the entire statute, a more modest
remedy would be sufficient. This measure allows an appealing party
time to have the electronic proceedings transcribed before the
affidavit of errors must be filed. By adding additional time to file a
notice of appeal, the burden on the court and parties will be
significantly reduced. Where an electronic recording of the proceeding
is fully audible and an adequate transcript can be made, the affidavit
of errors can be readily prepared by simply attaching the transcript
as an exhibit. The trial court's return will be equally easy to
prepare because the Court of Appeals has already held that a "court's
return 'can be satisfied by the transcript of an electronic recording
of the underlying proceeding, where there is no argument that the
affidavit of errors contained issues that could not be resolved by
reference to the transcript or that the transcript is in any way
incomplete or inaccurate" (People v Smith, 27 N.Y.3d 643 (2016),
quoting People v Robinson, 72 N.Y.2d 989, 990 (1988)).

In cases where the transcript either is materially incomplete or
inaccurate, counsel will be required to file an affidavit of errors
under current procedures. This is necessary to enable the court to
file a return to assure that the appeals court has "evidence, facts or
occurrences" sufficient to constitute a factual foundation for the
appeal. We believe that, even where the transcribed minutes are
incomplete or inaudible in significant areas, the underlying court and
counsel may well be able to use the audible portion of the transcribed
minutes as an aid in preparing the affidavit of errors or the court's
return.

This measure also amends section 460.70 in order to provide a
State-based funding mechanism for indigent defendant's counsel to
procure a transcribed copy of the electronic recording. This will
conform the law to the current practice.

The measure would take effect sixty days after becoming law.

 LEGISLATIVE HISTORY :

None. New proposal.


* All courts of the Unified Court System are courts of record - except
for the Justice Courts.