This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 114
The People &c.,
Respondent,
v.
Mary Anne Grady Flores,
Appellant.
Lance Salisbury, for appellant.
James P. Maxwell, for respondent.
Upstate Drone Action; Reporters Committee for Freedom
of the Press, et al.; Daniel Finlay, et al.; New York Civil
Liberties Union; Vera House, Inc., amici curiae.
DiFIORE, Chief Judge:
Criminal Procedure Law § 460.10 requires an appellant
to file an affidavit of errors with the criminal court in order
to take an appeal from a judgment of a local criminal court if
the underlying proceedings were not recorded by a court
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stenographer. We have already held that the filing of the
affidavit of errors in this circumstance is a jurisdictional
prerequisite (see People v Smith, 27 NY3d 643, 647 [2016]).
Consistent with our analysis in Smith, we conclude that the
failure to file the required affidavit of errors renders the
intermediate appellate court without jurisdiction to hear the
case.
I.
On October 25, 2012, the DeWitt Town Court issued a
temporary order of protection against defendant, Mary Anne Grady
Flores, after she was arraigned on charges of disorderly conduct
and trespass in connection with a protest occurring on Hancock
Field, the property of an Air National Guard military base
located at 6001 East Molloy Road. As relevant here, the
temporary order of protection, issued as a condition of bail
pursuant to CPL 530.13 (1), directed defendant to "[s]tay away"
from the Colonel who requested the order on behalf of the
military base, including his place of employment at 6001 East
Molloy Road. Almost four months after Town Court issued the
temporary order of protection against defendant, she was arrested
in connection with another protest for allegedly violating the
temporary order of protection and charged with criminal contempt
in the second degree, in addition to disorderly conduct.
Defendant's jury trial was held in a local Town Court,
which is not a court of record, and no court stenographer was
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present during the proceedings. The jury convicted defendant of
criminal contempt in the second degree and acquitted her of the
disorderly conduct charge. The trial court sentenced defendant
on July 10, 2014, and she filed her notice of appeal that same
day. Defendant did not file an affidavit of errors with the
court.
In the absence of a court stenographer to record the
proceedings, Town Court electronically recorded the trial
proceedings. Defense counsel made diligent efforts to obtain
these mechanical recordings of the proceedings in order to have
them transcribed for the appeal. On November 14, 2014 -- within
five months of the filing of the notice of appeal -- defense
counsel moved County Court for an order extending defendant's
time to perfect her appeal. Defense counsel also moved for "a
clarification of the proceedings pursuant to CPL 460.10 (2)." In
the affidavit submitted with that motion, counsel cited CPL
460.10 (3) (a) and (3) (b), and stated that "in order to take the
present appeal, [defendant] need only have filed the notice of
appeal with the DeWitt Town Court" and "served said notice of
appeal on the District Attorney." Having timely done this,
counsel concluded that the "appeal was properly taken pursuant to
CPL 460.10."
Defense counsel asked County Court to "conclude that
the transcripts created from an electronic recording of a trial
. . . is the functional equivalent of stenographic minutes for
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purposes of CPL []460.10." However, defense counsel further
argued in the alternative that, if County Court denied his
motion, "there is good cause for a late filing of the affidavit
of errors."1 On November 20, 2014, County Court granted
defendant an extension of time to perfect her appeal, without
reaching defendant's alternative application for leave to file a
late affidavit of errors pursuant to CPL 460.30.
County Court subsequently modified the judgment,
upholding defendant's conviction for criminal contempt in the
second degree, but reducing the year-long jail sentence defendant
received to six months. A Judge of this Court granted defendant
leave to appeal (27 NY3d 1132 [2016]), and we now reverse and
remit to County Court for further proceedings in accordance with
1
In his motion, defense counsel relied on People v Robinson
(72 NY2d 989 [1988]) as support for his request to treat the
trial transcripts prepared from an electronic recording as
equivalent to the minutes prepared by a court stenographer.
Defense counsel's motion was predicated on a misunderstanding of
the law. Rather than addressing the taking of an appeal, our
decision in Robinson plainly involved the trial court's return to
an appeal that had been taken by a defendant. The return "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]). In Robinson, we held that a transcript prepared from an
electronic recording of the defendant's probation revocation
hearing satisfied the statutory requirement of the court's return
pursuant to CPL 460.10 (3) (d) (72 NY2d at 990). We did not
determine that the transcript satisfied the affidavit of errors
requirement imposed on the appellant to take the appeal under CPL
460.10 (3) (a) (see id.). Defendant's motion pre-dated our
decision in Smith.
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this opinion.
II.
On appeal in this Court, defendant argues, among other
things, that Town Court had no authority under CPL 530.13 (1) to
issue the temporary order of protection, that the order
impermissibly burdened her First Amendment rights, and that the
accusatory instrument was defective. In response, the People
assert, in the first instance, that we cannot entertain the
appeal due to defendant's failure to file an affidavit of errors.
We agree with the People that this jurisdictional defect bars our
review of the merits of this appeal.
"It is a fundamental precept of the jurisdiction of our
appellate courts that '[n]o appeal lies from a determination made
in a criminal proceeding unless specifically provided for by
statute'" (Matter of 381 Search Warrants Directed to Facebook,
Inc., 29 NY3d 231, 242 [2017], quoting People v Lovett, 25 NY3d
1088, 1090 [2015]). CPL 1.10 specifically provides that "[a]ll
criminal actions and proceedings . . . and all appeals" are
exclusively governed by the Criminal Procedure Law. As we
recently held in Smith, CPL 460.10 (3) makes the filing of an
affidavit of errors a "jurisdictional requirement" for the taking
of an appeal from a local criminal court in which the underlying
proceedings were not recorded by a court stenographer (see Smith,
27 NY3d at 649-650).
The statute requires that the appellant must file,
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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]; see Smith, 27 NY3d at 648). "If the appellant chooses
to file a notice of appeal, he or she must then file an affidavit
of errors" (Smith, 27 NY3d at 648, citing CPL 460.10 [3] [a]).
CPL 460.10 (3) (a) plainly states that, even when a notice of
appeal is filed, an appellant must also file an affidavit of
errors with the court. Only after appellant files the affidavit
of errors, as prescribed in CPL 460.10 (3), is the appeal "deemed
to have been taken" (CPL 460.10 [3] [c]). Thus, the filing of
the affidavit of errors with the court is a "jurisdictional
prerequisite" (Smith, 27 NY3d at 646) for the taking of an
appeal. As defendant here did not take an appeal as dictated by
statute, the intermediate appellate court lacked jurisdiction to
review the issues raised.
Contrary to defendant's argument, this is not a new
pronouncement as to the jurisdictional nature of CPL 460.10. Our
recent decision in Smith was not the first time we held that
failing to file an affidavit of errors is a "jurisdictional
defect" preventing a court from hearing the appeal (see id. at
649). In interpreting section 751 of the former Code of Criminal
Procedure, the precursor to the Criminal Procedure Law, we held
that the failure to file an affidavit of errors within a thirty-
day period was fatal to the appeal (see People v Colin, 18 NY2d
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795 [1966] [affirming a County Court order granting the People's
motion to dismiss for failure to timely file an affidavit of
errors]; People v Dimmie, 15 NY2d 578 [1964]; People v Omans, 306
NY 375 [1954]; see also People v Coaye, 68 NY2d 857 [1986]
[holding that the prescribed limitations set out in CPL 460.10
are jurisdictional]).
Where the court is deprived of the requisite filings to
take the appeal, such defect directly goes to the jurisdiction of
the court. As defendant, here, failed to properly take an
appeal, this jurisdictional defect prevents our Court from
reviewing the substantial merits arguments raised by defendant in
this case.2
III.
In the past, when we determined an appeal was
improperly entertained by the intermediate appellate court, we
have remitted with directions to dismiss the appeal taken to that
court (see People v Stephens, 55 NY2d 778 [1981]; Matter of
Santangello v People, 38 NY2d 536 [1976]). Such corrective
action is not appropriate here however. CPL 460.30 (1) permits
2
This year, the legislature amended CPL 460.10 (3) to
afford appellants more time to file the affidavit of errors in
the event a court used an electronic recording in the
proceedings. If an appellant opts to first timely file a notice
of appeal, he or she now has 60 days after receipt of the
transcript of the electronically recorded proceedings to file the
affidavit (see CPL 460.10 [3] [a], as amended by L 2017, ch 195).
The legislature, while expanding the time an appellant has to
take an appeal, did not eliminate the jurisdictional prerequisite
of an affidavit of errors.
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an intermediate appellate court to extend a defendant's time to
file a late affidavit of errors under certain circumstances, if a
motion was made within a year of the expiration of the time for
the taking of the appeal. In this case, defendant filed a timely
notice of appeal and moved -- well within the statutory one-year
time period allotted for the relief of an extension of time --
for leave to file a late affidavit of errors. County Court
granted defendant an extension of time to obtain the transcripts,
but did not address defendant's alternative motion to file a late
affidavit of errors. Given the unusual circumstances presented
here, we remit to County Court to permit that court's exercise of
discretion in connection with defendant's motion to file a late
affidavit of errors.
Accordingly, the order of the County Court should be
reversed, and the case remitted to that court for further
proceedings in accordance with this opinion.
* * * * * * * * * * * * * * * * *
Order reversed and case remitted to County Court, Onondaga
County, for further proceedings in accordance with the opinion
herein. Opinion by Chief Judge DiFiore. Judges Rivera, Stein,
Fahey, Garcia, Wilson and Feinman concur.
Decided November 16, 2017
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