NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7446
SPONSOR: Brindisi 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 proce-
dure 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.{1} 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 affida-
vit 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 affi-
davit 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 recom-
mendation 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 inaccu-
rate, 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 occur-
rences" sufficient to constitute a factual foundation for the appeal. We
believe that, even where the transcribed minutes are incomplete or inau-
dible 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.
{1} All courts of the Unified Court System are courts of record - except
for the Justice Courts.
STATE OF NEW YORK
________________________________________________________________________
7446
2017-2018 Regular Sessions
IN ASSEMBLY
April 25, 2017
___________
Introduced by M. of A. BRINDISI -- (at request of the Office of Court
Administration) -- read once and referred to the Committee on Codes
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
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph (a) of subdivision 3 of section 460.10 of the
2 criminal procedure law, as added by chapter 671 of the laws of 1971, is
3 amended to read as follows:
4 (a) Within thirty days after entry or imposition in such local crimi-
5 nal court of the judgment, sentence or order being appealed, the appel-
6 lant must file with such court either (i) an affidavit of errors,
7 setting forth alleged errors or defects in the proceedings which are the
8 subjects of the appeal, or (ii) a notice of appeal. Where a notice of
9 appeal is filed, the appellant must serve a copy thereof upon the
10 respondent in the manner provided in paragraphs (b) and (c) of subdivi-
11 sion one, and, within [thirty] sixty days after [the filing thereof] the
12 appellant receives a transcript of the electronically recorded
13 proceedings, must file with such court an affidavit of errors.
14 § 2. Subdivision 1 of section 460.70 of the criminal procedure law, as
15 amended by chapter 83 of the laws of 1995, is amended to read as
16 follows:
17 1. Except as provided in subdivision two, the mode of and time for
18 perfecting an appeal which has been taken to an intermediate appellate
19 court from a judgement, sentence or order of a criminal court are deter-
20 mined by rules of the appellate division of the department in which such
21 appellate court is located. Among the matters to be determined by such
22 court rules are the times when the appeal must be noticed for and
23 brought to argument, the content and form of the records and briefs to
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09909-01-7
A. 7446 2
1 be served and filed, and the time when such records and briefs must be
2 served and filed.
3 When an appeal is taken by a defendant pursuant to section 450.10, a
4 transcript shall be prepared and settled and shall be filed with the
5 criminal court by the court reporter. Electronically recorded
6 proceedings that were not recorded by a stenographer shall be tran-
7 scribed and filed with the court as directed by the chief administrator
8 of the courts. The expense for such transcript and any reproduced copies
9 of such transcript shall be paid by the defendant. Where the defendant
10 is granted permission to proceed as a poor person by the appellate
11 court, the court reporter shall promptly make and file with the criminal
12 court a transcript of the stenographic minutes of such proceedings as
13 the appellate court shall direct. The expense of transcripts and any
14 reproduced copies of transcripts prepared for poor persons under this
15 section shall be a state charge payable out of funds appropriated to the
16 office of court administration for that purpose. The appellate court
17 shall where such is necessary for perfection of the appeal, order that
18 the criminal court furnish a reproduced copy of such transcript to the
19 defendant or his counsel.
20 § 3. This act shall take effect on the sixtieth day after it shall
21 have become a law.
