55 Misc. 3d 97
N.Y. App. Term.2017Background
- Defendant appealed a conviction from the Criminal Court of the City of New York; trial proceedings were electronically recorded (not stenographically).
- The People argued the appeal should be dismissed because defendant did not file an affidavit of errors under CPL 460.10(3).
- The court considered whether CPL 460.10(3)’s affidavit requirement applies when proceedings were electronically recorded but the trial court is a court of record.
- The court analyzed Judiciary Law § 295 and the constitutional/designation status of courts of record requiring stenographic notes.
- On the merits, defendant challenged the facial sufficiency of the accusatory instrument charging disorderly conduct and alleged the trial court acted as a prosecutor and that electronic recording lacked statutory authorization.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appeal must be dismissed for failure to file affidavit of errors under CPL 460.10(3) | CPL 460.10(3) requires an affidavit where proceedings were not stenographically recorded; electronic recording qualifies as not stenographic, so dismissal required | No affidavit required because appeal is from a court of record where Judiciary Law § 295 mandates a stenographer; statute not intended to apply to courts of record | Affidavit not required; CPL 460.10(3) was not intended to apply to appeals from courts of record, so appeal is not dismissed |
| Facial sufficiency of accusatory instrument for disorderly conduct (Penal Law § 240.20(5)) | N/A | Accusation insufficient to allege requisite intent or recklessness causing public inconvenience, annoyance or alarm | Charge is facially sufficient; requisite intent/recklessness inferable from allegations about blocking vehicular traffic |
| Allegation that trial judge acted as prosecutor, denying fair trial | N/A | Trial court improperly became advocate, violating constitutional rights | Claim unpreserved; declined review in interest of justice; alternatively rejected on merits |
| Whether electronic recording without statutory authorization required reversal | N/A | Electronic recording (vs. stenographic notes) violated statutory requirements and warrants reversal | Unpreserved and no prejudice shown; electronic recordings can suffice absent showing they prevent review; reversal not required |
Key Cases Cited
- People v Harrison, 85 N.Y.2d 794 (requires full stenographic notes in courts of record to facilitate appeal)
- People v Smith, 27 N.Y.3d 643 (village courts not courts of record; affidavit requirement applies where stenographer not required)
- People v Glass, 43 N.Y.2d 283 (automatic reversal only upon appropriate showing that record is inadequate for review)
- People v Kello, 96 N.Y.2d 740 (standards for claim that judge acted as prosecutor)
- People v DeLeyden, 10 N.Y.2d 293 (authority on judicial misconduct claims)
- People v Rivera, 39 N.Y.2d 519 (electronic or other non-stenographic devices historically sufficed for appellate review)