Affidavit of errorsSeptember 19, 2016

This is an unfortunate case in the criminal arena.  One of the great advances that the Jonathan Lippman administration made within our Town and Village Courts is to require that all proceedings be tape recorded should the town or village not want to incur the expense of a stenographer.   “In 2008, the Chief Administrative Judge of the State of New York issued a directive requiring the mechanical recording of all town and village court proceedings (Administrative Order of Chief Admin Judge of Cts AO/245/08 [May 21, 2008]).”

Should you appear in town or village courts or at the traffic tribunals, you will see a mixture of tape recorded proceedings and stenographic proceedings.

This case only applies the CPL and not the CPLR.  I am unaware of an analogue to the CPLR so those of us who practice in the Civil arena are safe.  But the case states the following:

(1)  “[A] defendant’s right to appeal within the criminal procedure universe is purely statutory” (People v Stevens, 91 NY2d 270, 278 [1998]). CPL 460.10 contains the procedural requirements for the taking of a criminal appeal, and adherence to those requirements is a jurisdictional prerequisite for the taking of an appeal (see People v Duggan, 69 NY2d 931, 932 [1987]). CPL 460.10 provides two different procedures for “appeal[s] taken as of right to a county court or to an appellate term.” Where “the underlying proceedings were recorded by a court stenographer,” an appellant is required to file a notice of appeal, and “the appeal is deemed to have been taken” “[u]pon {**27 NY3d at 648}filing and service of the notice of appeal” in the manner prescribed by the statute (see CPL 460.10 [1], [2]). Where “the underlying proceedings were not recorded by a court stenographer[,] . . . the appellant must file,” within 30 days, “either (i) an affidavit of errors, setting forth alleged errors or defects in the proceedings which are the subjects of the appeal, or (ii) a notice of appeal” (CPL 460.10 [3] [a]). If the appellant chooses to file a notice of appeal, he or she must then file an affidavit of errors within 30 days of the filing of that notice (see CPL 460.10 [3] [a]).[FN*] “[T]he appeal is deemed to have been taken” “[u]pon filing and service of the affidavit of errors as prescribed” (CPL 460.10 [3] [c]).

(2) “Following the filing of the affidavit of errors, the local criminal “court must file with the clerk of the appellate court to which the appeal has been taken both the affidavit of errors and the court’s return,” which “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” (CPL 460.10 [3] [d]). This Court has held that the 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 Robinson, 72 NY2d 989, 990 [1988]).’

(3) “An electronic recording that fully captures the proceedings and is later transcribed may be incorporated in an affidavit of errors, or in the court’s return, and filed as a proposed record on appeal (see Robinson, 72 NY2d at 990). However, the filing of a record on appeal is distinct from the taking of the appeal, and a transcript will not{**27 NY3d at 650} fulfill the jurisdictional requirement of the filing of the affidavit of errors.”

(4) “As a practical matter, the record in Ramsey highlights the problematic aspects of considering the transcription of an electronically recorded proceeding to be equivalent to a real-time stenographic transcription. A court stenographer, present at the time of the proceeding, has the ability to ask a party or the judge to repeat something in order to ensure the completeness and accuracy of the record. By contrast, where an electronic recording fails to record portions of the proceedings, a later transcription—even if performed by a certified court stenographer—cannot cure the omissions.”


A few thoughts here.  First, should there be issues with the electronic recording, then the parties settle the transcript and a judge would invariably sign off on it.  Second, the Court should interpret the statutes in light of common sense and reality.

If it makes anyone feel better, the poor saps who got there appeals dismissed due to the failure to file an affidavit of errors are now successfully bringing writs of coram nobis at the Appellate Term, so you all can sleep easier at night,



2 Responses

  1. Sun Tzu says:

    Sleep easier? donald trump might become president of the united states of america.

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