Update Appeal Procedures

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.