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People v. Grady Flores

New York Court of Appeals

November 16, 2017

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.

          OPINION

          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 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 N.Y.3d 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 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 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 N.Y.3d 1132');">27 N.Y.3d 1132 [2016]), and we now reverse and remit to County Court for further proceedings in accordance with 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 N.Y.3d 231, 242 [2017], quoting People v Lovett, 25 N.Y.3d 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 ...


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