This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 103
The People &c.,
            Appellant,
        v.
Glenn S. Smith,
            Respondent.
-----------------------
No. 104
The People &c.,
            Respondent,
        v.
Norman E. Ramsey,
            Appellant.




Case No. 103:
          Andrew R. Kass, for appellant.
          Richard N. Lentino, for respondent.
Case No. 104:
          Robert N. Gregor, for appellant.
          Brandon P. Rathbun, for respondent.




DIFIORE, Chief Judge:
          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

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                                - 2 -                Nos. 103 & 104

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.
                                 I.
                           People v Smith
           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 [App Term, 2d Dept, 9th and 10th Jud Dists 2014]),


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                                - 3 -                Nos. 103 & 104

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 [App Term, 2d Dept, 9th and 10th
Jud Dists 2013]).    The Appellate Term then addressed the merits
and reversed the judgment (43 Misc 3d at 73-74).   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).
          A Judge of this Court granted the People leave to
appeal (24 NY3d 1005 [2014]).
                           People v Ramsey
          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


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                                - 4 -                Nos. 103 & 104

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 NY3d 1010 [2015]).
                                 II.
          "[A] defendant's right to appeal within the criminal
procedure universe is purely statutory" (People v Stevens, 91
NY2d 270, 278 [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


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                               - 5 -                  Nos. 103 & 104

taking of an appeal (see People v Duggan, 69 NY2d 931, 932
[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



*
  Under CPL 460.30 (1), an intermediate appellate court "may
order that the time for the taking of [an] appeal . . . be
extended" upon motion "of a defendant who desires to take an
appeal . . . but has failed to file . . . an affidavit of errors
. . . within the prescribed period." Such relief may be granted
only if failure to file the affidavit of errors resulted from
certain enumerated circumstances (see id.).

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                              - 6 -                  Nos. 103 & 104

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 NY2d 989, 990 [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


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                                - 7 -                Nos. 103 & 104

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 Administrative Judge, 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 NY 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).
                                III.
          CPL 460.10 is “free from ambiguity and express[es]
plainly, clearly and distinctly the legislative intent”


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                                - 8 -                Nos. 103 & 104

(McKinney’s Cons Laws of NY, Book 1, Statutes § 76), that, where
the underlying proceedings are not recorded by a court
stenographer, a defendant must file an affidavit of errors.
Thus, defendants' failure to do so is a jurisdictional defect
requiring dismissal.    The 2008 order of the Chief Administrative
Judge of the State of New York requiring the mechanical recording
of proceedings in town and village justice courts -- issued no
doubt to enhance the record on appeal -- cannot amend or
supplement the legislative scheme setting forth the requirements
for taking an appeal.   That is a job for the legislature.   An
electronic recording that fully captures the proceedings and is
later transcribed may be incorporated in an affidavit of errors,
or in the court's return, and filed as a proposed record on
appeal (see Robinson, 72 NY2d at 990).   However, the filing of a
record on appeal is distinct from the taking of the appeal, and a
transcript will not fulfill the jurisdictional requirement of the
filing of the affidavit of errors.
          A contrary conclusion is belied by the plain language
of the statute.   As noted, CPL 460.10 expressly distinguishes
between proceedings "recorded by a court stenographer” and
proceedings that are not (see CPL 460.10).   Read in conjunction
with the provisions of the Judiciary Law, defining court
stenographer and setting forth the function of that office, the
statute contemplates that an officer of the court has taken full




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                               - 9 -                Nos. 103 & 104

and complete stenographic notes of the proceedings (see Judiciary
Law § 295).
          As a practical matter, the record in Ramsey highlights
the problematic aspects of considering the transcription of an
electronically recorded proceeding to be equivalent to a real-
time stenographic transcription.   A court stenographer, present
at the time of the proceeding, has the ability to ask a party or
the judge to repeat something in order to ensure the completeness
and accuracy of the record.   By contrast, where an electronic
recording fails to record portions of the proceedings, a later
transcription -- even if performed by a certified court
stenographer -- cannot cure the omissions.   As County Court in
Ramsey stated, the filing of an affidavit of errors would have
assisted the court in assessing the voluntariness of Ramsey’s
plea, and would have prevented speculation regarding what
occurred during the “inaudible” conversation involving the
prosecutor, defendant, and the judge that was reflected in the
transcript of the mechanical recording.
          It is not within this Court's power to change the
existing statute, which expressly requires an affidavit of errors
to be filed where the underlying proceedings were not recorded by
a court stenographer.   The right to a criminal appeal in New York
is statutory, and the failure to file an affidavit of errors in
both cases below prevented the appeal from being properly taken
by either of the intermediate appellate courts.


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                                 - 10 -                   Nos. 103 & 104

            Accordingly, the order of the Appellate Term in People
v Smith should be reversed, and the case remitted to that court
for further proceedings in accordance with this opinion; the
order of County Court in People v Ramsey should be affirmed.
*   *   *    *   *   *   *   *     *      *   *   *   *   *   *   *   *
For Case No. 103: Order reversed, and case remitted to the
Appellate Term, Ninth and Tenth Judicial Districts, for further
proceedings in accordance with the opinion herein. Opinion by
Chief Judge DiFiore. Judges Pigott, Rivera, Abdus-Salaam, Stein,
Fahey and Garcia concur.

For Case No. 104: Order affirmed. Opinion by Chief Judge
DiFiore. Judges Pigott, Rivera, Abdus-Salaam, Stein, Fahey and
Garcia concur.

Decided June 23, 2016




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