People v. Bartholomew

• Decision Date: 11 March 2011
• Citation: 918 N.Y.S.2d 859,31 Misc.3d 698
• Parties: The PEOPLE of the State of New York, Respondent v. Kelvin K. BARTHOLOMEW, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

918 N.Y.S.2d 859

31 Misc.3d 698

The PEOPLE of the State of New York, Respondent

v.Kelvin K. BARTHOLOMEW, Defendant-Appellant.

County Court, Broome County, New York.

March 11, 2011.

A.L. Beth O'Connor, for the appellant.

Thomas D. Jackson, Jr., Esq., for the respondent.

MARTIN E. SMITH, J.

The defendant appeals from the Decision and Order denying a motion pursuant to Criminal Procedure Law Article 440 entered in the City of Binghamton Court (Lehmann, J.) on July 10, 2009. On August 7, 2009, the defendant applied to this Court for leave to appeal. On March 19, 2010, this Court issued an Order and Certificate granting leave to appeal and the defendant was directed to take the appeal consistent with the provisions of Criminal Procedure Law § 460.10. The defendant served a Notice of Appeal on City Court and the District Attorney on March 25, 2010. The Court received the Certified Record on Appeal and an original and one copy of the Appellant's Brief and Appendix on November 15, 2010.

By letter dated December 17, 2010, the Court notified the appellant that he was required to submit an affidavit of errors to take this appeal since the proceeding below was not stenographically recorded. The Court requested argument regarding whether this appeal was properly taken, and if not, whether there was sufficient basis to allow an extension of time to take the appeal. The defendant timely submitted a response on January 12, 2011, and included an affidavit of errors.¹ The People have submitted neither their response brief, nor a response to the defendant's January 12th motion. The Court need not wait for the People's position to issue its ruling.

The presence of a court stenographer, or lack thereof, determines how a criminal appeal is taken from a local criminal court. Where the proceedings were "recorded by a court stenographer" the appeal is deemed taken upon the proper filing of the notice of appeal (CPL § 460.10[2] ). On the other hand, an appeal from a local criminal court where the proceedings were not "recorded by a court stenographer" is deemed taken when the affidavit of error is filed in that court (CPL § 460.10[3][c] ).

The phrase "recorded by a court stenographer" is not specifically defined by statute. The defendant asserts that the recording of proceedings using a four-track tape system approved by the Office of Court Administration, and the verbatim transcription by a court-hired transcriber, is the equivalent of a recording by a court stenographer. In order to determine whether the defendant's position finds support in the language of CPL § 460.10, the Court turns first to the rules of statutory construction.

"The primary consideration of the courts in the construction of statutes is to ascertain and give effect to the intention of the Legislature" (McKinney's Statutes § 92[a] ). The clearest indication of legislative intent is the statutory language itself ( People v. Robinson, 95 N.Y.2d 179, 182-3, 711 N.Y.S.2d 148, 733 N.E.2d 220 [2000] ). If the terms have "a definite meaning, which [involve] no absurdity or contradiction, there is no room for construction, and courts have no right to add or take away from that meaning" ( Tompkins v. Hunter, 149 N.Y. 117, 123, 43 N.E. 532 [1896] ). A court may not "legislate under the guise of interpretation" ( People v. Finnegan, 85 N.Y.2d 53, 58, 623 N.Y.S.2d 546, 647 N.E.2d 758 [1995] ).

"Recorded by a court stenographer," as used in CPL § 460.10, is neither complex nor ambiguous in its meaning. The phrase means quite simply that the proceedings are contemporaneously set down in verbatim writing by a court reporter designated by the court. If the Legislature had intended otherwise, they might well have used the language "recorded and transcribed" or, deferring to the courts, "recorded in a manner authorized by the Chief Administrative Judge." They did not. Put simply, there is no room for construction; this Court can not arrogate a power that resides solely with the Legislature.

The Court notes well that other courts and agencies have interpreted "recorded by a court stenographer" to include mechanical, electronic, or digital recording ( See, People v. Guernsey, 136 Misc.2d 791, 519 N.Y.S.2d 338 [Schoharie County Court 1987] ). This interpretation is based on the erroneous premise that defining "recorded by a court stenographer" is a purely administrative exercise. To be sure, the Chief Judge of the State New York, and where delegated the Chief Administrative Judge, has broad plenary powers to administer and operate the unified court system for the state (N.Y. Const., art. VI, § 28). This administrative function includes the power to regulate "the manner and method of recording judicial proceedings" ( Bloom v. Crosson, 183 A.D.2d 341, 590 N.Y.S.2d 328 [3d Dept. 1992] aff'd 82 N.Y.2d 768, 603 N.Y.S.2d 991, 624 N.E.2d 175 [1993] ). Furthermore, the Chief Administrative Judge may exercise authority where specifically provided by law ( See, Matter of Morgenthau v. Cooke, 56 N.Y.2d 24, 32, 451 N.Y.S.2d 17, 436 N.E.2d 467 [1982] ).

Judiciary Law 290-a, enacted in 1995, legislatively authorized the chief administrator of the courts to implement mechanical recording in certain courts. Once the law expired in 1999, the Chief Administrative Judge began exercising complete administrative discretion and expanded the use of mechanical recording in lieu of stenographers ( See, Stashenko, Senate Bill Would Limit OCA's Use of Court Recording Devices, N.Y.L.J., May 19, 2008 at 1, col. 4). In 2008 for example, the Chief Administrative Judge promulgated a rule that required mechanical recording of any proceedings in town or village justice courts (Administrative Order of the Chief Administrative Judge of the Courts, AO/245/08 [May 21, 2008] ). The number of courts in which mechanical recording has supplanted the use of a stenographer continues to increase.² Thus, there is ample administrative authority that a transcript generated from a mechanical recording can constitute the record on appeal. However, what constitutes the record on appeal is not the critical question, rather it is: "When is a criminal appeal deemed taken?"

Only in criminal appeals taken from a local criminal court to a county court or appellate term of the supreme court does how the record was made have a jurisdictional impact. The right to appeal in criminal cases is determined exclusively by statute ( Matter of State v. King, 36 N.Y.2d 59, 364 N.Y.S.2d 879, 324 N.E.2d 351 [1975] ). Any procedural requirement must be adhered to strictly ( See, People v. Colwell, 103 A.D.2d 169, 171, 479 N.Y.S.2d 904 [3d Dept. 1984] ). The failure to comply with applicable appellate procedure is a jurisdictional defect and results in dismissal of the appeal ( See, People v. Duggan, 69 N.Y.2d 931, 516 N.Y.S.2d 633, 509 N.E.2d 328 [1987](affirming dismissal of an appeal where the People filed an affidavit of errors instead of a notice of appeal as required); See also, People v. Woodruff, Broome County Ct., Aug. 23, 2007, Smith, J., index no. N-2493 (holding that the failure to timely file an affidavit of errors is a jurisdictional defect); And see, People v. Pratt, 11 Misc.3d 332, 807 N.Y.S.2d 836 [Saratoga County Ct. 2005](holding that failure to serve an affidavit of errors on the District Attorney is also a jurisdictional defect)). Whether an appeal from a local criminal court is...