People v. Bachstein

• Decision Date: 30 November 2016
• Docket Number: 14/0078
• Parties: The People of the State of New York, Respondent, v. Jay Bachstein, Defendant.
• Court: New York County Court

2016 NY Slip Op 26458

The People of the State of New York, Respondent, v. Jay Bachstein, Defendant.

14/0078

New York County Court, Monroe County

Decided on November 30, 2016

For the People:

SANDRA DOORLEY, ESQ.

Monroe County District Attorney

SCOTT MYLES, ESQ.

Assistant District Attorney

47 S. Fitzhugh Street

Rochester, New York 14614

For the Defendant:

TODD WISNER, ESQ.

30 West Broad Street, Suite 500

Rochester, New York 14614

Christopher S. Ciaccio, J.

Defendant Jay Bachstein appeals from a judgment of the East Rochester Town Court (Brown-Steiner, J.), entered January 6, 2014, convicting him after a bench trial of Aggravated Driving While Intoxicated (VTL §1192[2][a]).

Defendant argues that the evidence was legally insufficient to prove that he operated a motor vehicle and that the verdict was against the weight of the evidence. The People addressed the substantive arguments, but first argued that his appeal should be dismissed as jurisdictionally defective under CPL §460.10 and pursuant to People v Smith, 27 NY3d 643 (June 23, 2016), in that defendant did not file an affidavit of errors within the time mandated.

CPL 460.10 §§ (2) and (3) govern the taking and perfection of an appeal from a local criminal court to a county court or supreme court appellate term. Subdivision (3) states in no uncertain terms that where the underlying proceedings were not recorded by a court stenographer, the defendant:

Within thirty days after entry or imposition in such local criminal court of the judgment, sentence or order being appealed, the appellant must file with such court 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. Where a notice of appeal is filed, the appellant must serve a copy thereof upon the respondent in the manner provided in paragraphs (b) and (c) of subdivision one, and, within thirty days after the filing thereof, must file with such court an affidavit of errors. CPL §460.10(3)(a).

Defendant filed his notice of appeal with the East Rochester Village Court on June 27, 2014. It was received in the Monroe Supreme and County Courts Office on November 21, 2014. Subsequent to that date, defendant requested and was granted by this Court seven extensions of time to perfect his appeal, each time to obtain transcripts of the recordings of the proceedings at the lower court since no stenographer had been present and because of problems with the recording.

Defendant filed his brief and a transcript of the recording of the relevant lower court proceedings, but never filed an affidavit of errors required by CPL §460.10(3)(a).

While it is common practice to treat a transcript made from a recording as the "functional equivalent" (People v. Finklea, 41 Misc 3d 41, 42—43 [Sct App Term, 2nd Dept2013]) of a transcript made from a stenographer's notes, the Court of Appeals in People v. Smith (27 NY3d 643), has rejected that view, holding that "a transcript (of a recording) will not fulfill the jurisdictional requirement of the filing of the affidavit of errors" Id., at 649-650.

Accordingly, as this Court is bound by the decision in Smith, and since defendant failed to follow the statutory requirements for taking his appeal, the appeal is hereby dismissed without prejudice.

This is so even though the defendant received a letter from the Monroe County Clerk's office upon that office's receipt of the Notice of Appeal that specifically stated that an affidavit of errors must be filed when "a court reporter was not present and (emphasis added) there was not an electronic recording." It is so even though the requirement of an affidavit of errors fulfilled a legislative scheme that was, as one court noted, "appropriate when one used a quill and ink to generate a subjective affidavit of errors based on recollection of court proceedings" (People v. Schumacher, 35 Misc 3d 1206[A] [Co. Ct. 2012]), but which is no longer necessary now that mechanical recordings provide a record equivalent to a stenographic recording.

And it is so even though the defendant would have been incapable of filing an accurate affidavit of errors without a complete transcript of the bench trial, which he did not get, because of problems with the recording, until March of 2016, nearly two years after the judgment was entered and after the time to file or even move for an extension to file had expired. The Court of Appeals suggests that an affidavit of errors has a practical and beneficial function, in that it can assist the court in preventing "speculation regarding what occurred during the inaudible conversation[s] (People v. Smith at 650). That may be so, but if the recording cannot be secured quickly and counsel cannot file an affidavit of errors within the mandated time period, then the defendant faces dismissal for the jurisdictional defect.

Notwithstanding, this Court finds that even if the defendant had filed the affidavit of errors in a timely fashion, the judgment of conviction would be affirmed, as the verdict was based on legally sufficient evidence and was...