Relates to perfecting appeals from local criminal courts based on mechanical or electronic recordings

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)