People v. Smith
| Decision Date | 23 June 2016 |
| Parties | The PEOPLE of the State of New York, Appellant, v. Glenn S. SMITH, Respondent. The People of the State of New York, Respondent, v. Norman E. Ramsey, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
David M. Hoovler, District Attorney, Middletown (Andrew R. Kass of counsel), for appellant in the first above-entitled action.
Richard N. Lentino, Middletown, for respondent in the first above-entitled action.
Robert N. Gregor, Lake George, for appellant in the second above-entitled action.
J. Anthony Jordan, District Attorney, Fort Edward (Brandon P. Rathbun of counsel), for respondent in the second above-entitled action.
At issue in both appeals here is whether CPL 460.10 requires a defendant who was convicted in a local court, which is not designated by law as a court of record and did not have a court stenographer present during the proceedings, to submit an affidavit of errors in order to take an appeal to the intermediate appellate court. In these cases, defendants failed to file an affidavit of errors and instead provided a transcript derived from an electronic recording of the underlying proceedings. The intermediate appellate courts came to opposite conclusions in their respective cases as to whether an appeal had properly been taken within the meaning of the controlling statute. We hold that the statutory language is plain, and an affidavit of errors is a jurisdictional prerequisite for the taking of an appeal from a local criminal court where there is no court stenographer.
Defendant Smith was convicted—upon a jury verdict in a village court—of resisting arrest and disorderly conduct. The court employed an electronic recording device to record the trial proceedings and no court stenographer was present. Smith filed a timely notice of appeal and provided as the record on appeal a transcript produced from the electronic recording; he did not file an affidavit of errors. On appeal, the People argued that Smith's failure to file an affidavit of errors pursuant to CPL 460.10(3) was a jurisdictional defect requiring dismissal. The Appellate Term rejected the People's argument (43 Misc.3d 71, 986 N.Y.S.2d 737 [App.Term, 2d Dept., 9th & 10th Jud.Dists.2014] ), citing its own 2013 decision in which it held that “the process of recording 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 Misc.3d at 73–74, 986 N.Y.S.2d 737 ). As Smith had already served his sentence, the court did not order a new trial but instead “dismiss [ed] the accusatory instrument” (id. at 74, 986 N.Y.S.2d 737 ).
A Judge of this Court granted the People leave to appeal (24 N.Y.3d 1005, 997 N.Y.S.2d 123, 21 N.E.3d 575 [2014] ).
Defendant Ramsey pleaded guilty in Village Court to forcible touching. In connection with the plea, Ramsey, the prosecutor, and the judge all signed a written “Trial Waiver and Plea Agreement,” which set forth, among other things, the constitutional rights Ramsey was waiving by executing the plea agreement. The plea proceeding was recorded electronically, without a court stenographer, and the recording was later transcribed. Defendant provided that transcription as the record on appeal. The transcript reflected a number of occasions where the transcriber could not identify the speaker or the substance of the speech, containing entries such as “Shuffling of papers—inaudible”; “Conversation between Mr. Ramsey, [defense counsel] and [the judge] and others”; and “A lot of talking all at once.” Ramsey filed a timely notice of appeal, but failed to file an affidavit of errors. The People moved to dismiss the appeal.
County Court granted the People's motion to dismiss Ramsey's appeal, concluding that “CPL § 460.10 draws [its] procedural distinction on who is taking down, keeping and providing the record on appeal,” which “is either the stenographer who actually recorded the proceedings or the Court that presided over them.” In either circumstance, “the record is provided by the person who was present at the time the proceedings were held.” According to the court, “holdings that audio recordings are the functional equivalent of stenographic transcripts [we]re belied by the record on this appeal” because the transcribed audio recording referenced numerous indiscernible conversations and was thus incomplete. Given the gaps in the record, the court could not assess whether Ramsey's guilty plea was knowingly, voluntarily and intelligently entered. County Court opined that that gap could have been filled by the court's return in response to an affidavit of errors, had one been filed.
A Judge of this Court granted Ramsey leave to appeal (26 N.Y.3d 1010, 20 N.Y.S.3d 551, 42 N.E.3d 221 [2015] ).
“[A] defendant's right to appeal within the criminal procedure universe is purely statutory” (People v. Stevens, 91 N.Y.2d 270, 278, 669 N.Y.S.2d 962, 692 N.E.2d 985 [1998] ). CPL 460.10 contains the procedural requirements for the taking of a criminal appeal, and adherence to those requirements is a jurisdictional prerequisite for the taking of an appeal (see People v. Duggan, 69 N.Y.2d 931, 932, 516 N.Y.S.2d 633, 509 N.E.2d 328 [1987] ). CPL 460.10 provides two different procedures for “appeal[s] taken as of right to a county court or to an appellate term.” Where “the underlying proceedings were recorded by a court stenographer,” an appellant is required to file a notice of appeal, and “the appeal is deemed to have been taken” “[u]pon filing and service of the notice of appeal” in the manner prescribed by the statute (see CPL 460.10[1], [2] ). Where “the underlying proceedings were not recorded by a court stenographer[,] ... the appellant must file,” within 30 days, “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” (cpl 460.10[3][A] ). if the appellant chooses to file a notice of appeal, he or she must then file an affidavit of errors within 30 days of the filing of that notice (see CPL 460.10[3][a] ).* “[T]he appeal is deemed to have been taken” “[u]pon filing and service of the affidavit of errors as prescribed” (CPL 460.10[3][c] ).
Following the filing of the affidavit of errors, the local criminal “court must file with the clerk of the appellate court to which the appeal has been taken both the affidavit of errors and the court's return,” which “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” (CPL 460.10[3][d] ). This Court has held that the 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. Robinson, 72 N.Y.2d 989, 990, 534 N.Y.S.2d 367, 530 N.E.2d 1287 [1988] ).
On its face, CPL 460.10 provides two divergent procedures for the taking of a criminal appeal from a local court, and their application is dependent on the presence or absence of a court stenographer at the underlying proceedings (see CPL 460.10[1], [2], [3] ). Although CPL 460.10 does not provide a definition of court stenographer, article 9 of the Judiciary Law does, and it further defines the role of the stenographer in the proceedings. According to the Judiciary Law, a stenographer is an officer of the court who must file a constitutional oath of office (see Judiciary Law §§ 290, 294 ). Each stenographer “must take full stenographic notes of the testimony and of all other proceedings” and “shall take complete stenographic notes of each ruling or decision of the presiding judge, and when the trial is by jury each and every remark or comment of such judge during the trial” as well as the exceptions to each ruling (id. § 295).
In 2008, the Chief Administrative Judge of the State of New York issued a directive requiring the mechanical recording of all town and village court proceedings (Administrative Order of Chief Admin. Judge of Cts. AO/245/08 [May 21, 2008] ). Importantly, neither court is designated by law as a court of record in the New York Constitution or the Judiciary Law (see N.Y. Const., art. VI, § 1 ; Judiciary Law § 2 ). Consequently, there is no requirement for a court stenographer to be present.
In both cases now before this Court, defendants argue that a mechanical recording of proceedings in town or village justice courts should be deemed equivalent to a record taken by a court stenographer. Under their interpretation, their appeals were properly taken under CPL 460.10(2), for which no affidavit of errors is required. The People counter that the plain language of CPL 460.10 compels a conclusion that defendants were required to file an affidavit of errors pursuant to CPL 460.10(3) because no court stenographer was present for the underlying criminal proceedings. We hold that both appeals should have been dismissed for failure to comply with CPL 460.10(3).
CPL 460.10 is “free from ambiguity...
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