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A07446 Summary:

Amd 460.10 & 460.70, CP L
Relates to procedures for taking an appeal from a court that is not designated a court of record.
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A07446 Actions:

04/25/2017referred to codes
05/04/2017advanced to third reading cal.308
05/15/2017passed assembly
05/15/2017delivered to senate
06/07/2017SUBSTITUTED FOR S5069
06/07/20173RD READING CAL.922
08/09/2017delivered to governor
08/21/2017signed chap.195
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A07446 Memo:

submitted in accordance with Assembly Rule III, Sec 1(f)
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.
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A07446 Text:

                STATE OF NEW YORK
                               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

          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.

        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.
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