People v. Finklea
| Decision Date | 05 September 2013 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Jacob A. FINKLEA, Appellant. |
| Court | New York Supreme Court — Appellate Division |
41 Misc.3d 41
974 N.Y.S.2d 239
2013 N.Y. Slip Op. 23304
The PEOPLE of the State of New York, Respondent,
v.
Jacob A. FINKLEA, Appellant.
Supreme Court, Appellate Term,
Second Dept., 9 and 10 Judicial Dist.
Sept. 5, 2013.
Francis D. Phillips II, District Attorney, Middletown (Andrew R. Kass of counsel), for respondent.
Michele Marte-Indzonka, Newburgh, for appellant.
PRESENT: NICOLAI, P.J., LaSALLE and TOLBERT, JJ.
[41 Misc.3d 41]Appeal from a judgment of the Justice Court of the Town of Woodbury, Orange County (David L. Levinson, J.), rendered December 13, 2012. The judgment convicted defendant, upon his plea of guilty, of driving while ability impaired.
[41 Misc.3d 42]ORDERED that the judgment of conviction is affirmed.
Defendant was initially charged, by simplified traffic informations, with driving while ability impaired in violation of Vehicle and Traffic Law § 1192(1) and driving across hazard markings in violation of Vehicle and Traffic Law § 1128(d), respectively. After his motion to dismiss the simplified traffic informations upon the ground of facial insufficiency, due to an alleged failure to file and serve a supporting deposition ( seeCPL 100.40 [2]; 170.30[1][a]; 170.35[1][a] ) was denied, defendant pleaded guilty to driving while ability impaired in satisfaction of both charges. On appeal, he argues that his motion to dismiss should have been granted. In their respondent's brief, the People raise, among other things, a threshold issue that defendant has not properly taken this appeal because the proceedings were not recorded by a court stenographer and, thus, defendant was required to, but did not, file and serve an affidavit of errors.
[974 N.Y.S.2d 240]
The taking of an appeal as of right to a County Court or an Appellate Term of the Supreme Court from a judgment of a local criminal court “in a case in which the underlying proceedings were recorded by a court stenographer” is governed by CPL 460.10(2). In the event that such proceedings were not recorded by a court stenographer, the taking of an appeal is governed by CPL 460.10(3), which requires the filing and service of an affidavit of errors. In this case, the proceedings were electronically recorded, as required by Administrative Order 245/2008, and then transcribed. The People argue that, since the proceedings were not recorded by a court stenographer, defendant was required to take his appeal pursuant to CPL 460.10(3) and that, since he sought to take the appeal pursuant to CPL...
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People v. Smith
...dismissed because defendant did not file an affidavit of errors in accordance with CPL 460.10(3) is without merit ( see People v. Finklea, 41 Misc.3d 41, 974 N.Y.S.2d 239 [App.Term., 9th & 10th Jud. Dists.2013] ). Defendant failed to preserve for appellate review his claim that his guilt of......
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People v. Moeirzadeh
...39 Misc 3d 137(A), 2012 NY Slip Op 52468(U),(App Term, 9th & 10th Judicial Districts, 2012), and People v Finklea 2013 NY Slip Op 23304 (App Term, 2d Dep't, 2013) 41 Misc 3d 41. In addition, the thirty day demand period is not affected by, or extended based on the timing of defense counsel'......
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People v. Bachstein
...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, 974 N.Y.S.2d 239 [Sct. App. Term, 2nd Dept.2013] ) of a transcript made from a stenographer's notes, the Court of Appeals in People v. Smith, 27 N.Y.3d......
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People v. Smith
...court proceedings electronically is the functional equivalent of a ‘record[ing] by a court stenographer’ ” (People v. Finklea, 41 Misc.3d 41, 42–43, 974 N.Y.S.2d 239 [App.Term, 2d Dept., 9th & 10th Jud.Dists.2013] ). The Appellate Term then addressed the merits and reversed the judgment (43......