People v. Schumacher

• Decision Date: 03 April 2012
• Docket Number: No. 054–12.,054–12.
• Citation: 2012 N.Y. Slip Op. 50591,951 N.Y.S.2d 88,35 Misc.3d 1206
• Parties: The PEOPLE of the State of New York, Respondent, v. Frederick SCHUMACHER, Defendant–Appellant.
• Court: New York County Court

35 Misc.3d 1206
951 N.Y.S.2d 88
2012 N.Y. Slip Op. 50591

The PEOPLE of the State of New York, Respondent,
v.
Frederick SCHUMACHER, Defendant–Appellant.

No. 054–12.

County Court, Sullivan County, New York.

April 3, 2012.

Michael B. Mednick, Esq., Town Attorney, Town of Thompson, Monticello, attorney for respondent.

Frederick Schumacher, Rock Hill, Defendant–Appellant Pro Se.

FRANK J. LaBUDA, J.

Appellant appeals two orders from the Town of Thompson Justice Court determining his dog was a “dangerous dog” as defined in the Agriculture and Markets Law, § 121.¹

The first “order” was rendered in open court after a hearing on January 13, 2011. There was no written order or decision immediately following that hearing. Subsequently, on or about the 10th day of March, 2011, another hearing took place in the Town of Thompson Justice Court regarding the same dog being involved in a separate incident a month earlier and subsequent to the January 13 hearing. The Justice Court found defendant-appellant (hereinafter, “appellant”) to be in violation of the Court's previous order from the January 13 hearing and imposed a fine and other restrictions and conditions regarding the subject animal. The Hon. Perry Meltzer issued written findings and a decision, said order dated July 4, 2011.

Procedural Background

Appellant timely filed a Notice of Appeal with the Clerk of the Town of Thompson Justice Court on July 19, 2011, and served the Notice of Appeal by mail on Respondent through its attorney, the Town of Thompson attorney. Because the proceedings were mechanically/electronically recorded, Appellant ordered transcripts. Upon receiving a copy of the transcripts of the proceedings, Appellant submitted those copies to the Town Attorney, who stipulated to their correctness. Appellant then timely filed his Notice of Argument, Appellant's Brief, and Record on Appeal with the Clerk of the Sullivan County Court on January 3, 2012.

Having received no reply from Respondent to his Notice of Argument and Brief, Appellant contacted the Clerk of the Sullivan County Court by letter dated January 31, 2012, inquiring as to whether the Court received any responding papers from Respondent. By letter dated February 7, 2012, the Clerk of Court informed Appellant that as of that date, the Court had not received any response papers from Respondent.

On February 9, 2012, Respondent filed a Motion to Dismiss, and on February 16, 2012, Appellant filed a Cross-motion for Default against Respondent for failure to timely respond to Appellant's brief, and as a response to Respondent's Motion to Dismiss. Respondent filed a Sur–Reply.

In its Motion to Dismiss, Respondent asserts that Appellant failed to properly serve Respondent with the Notice of Appeal and failed to file an affidavit of errors and follow the procedural requirements pursuant to CPL § 460.10(3)(a). Alternatively, Respondent argues that if this Court were to treat the transcription from the mechanical recording from the Justice Court the same as a transcription from a stenographic recording, the appeal should be dismissed because Respondent claims Appellant still failed to serve the Notice of Appeal and also failed to serve the Notice of Argument, Brief and Record on Appeal on Respondent.

Discussion

A party wishing to appeal an order, judgment or sentence must file “with the clerk of the criminal court in which such sentence was imposed” a written notice of appeal within 30 days of the imposition of such order judgment or sentence. CPL § 460.10(1)(a). In addition, when a defendant is the appellant, the defendant, within that same 30–day period, must serve a copy of the notice of appeal on the district attorney “of the county embracing the criminal court in which the judgment or order being appealed was entered.” CPL § 460.10(1)(b). Generally, there are no exceptions to these rules and the failure of a party to timely file the notice of appeal is a fatal procedural flaw.

The process of continuing with the appellate procedure from local to County Court, however, becomes less clear after one files the Notice of Appeal. For criminal matters, if the “underlying proceedings were recorded by a court stenographer” an appellant follows the procedures in CPL § 460.10(1). CPL § 460.10(2). If the underlying proceedings were not recorded by a court stenographer, the appeal is taken pursuant to CPL § 460.10(3).

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