Salisbury, for appellant.
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.
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
). 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.
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.
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.
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."
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."  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.
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 ),
and we now reverse and remit to County Court for further
proceedings in accordance with this opinion.
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
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 ,
quoting People v Lovett, 25 N.Y.3d 1088, 1090
). 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 ...