People v Schumacher

[*1] People v Schumacher 2012 NY Slip Op 50591(U) Decided on April 3, 2012 County Court, Sullivan County LaBuda, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 3, 2012
County Court, Sullivan County

The People of the State of New York, Respondent,

against

Frederick Schumacher, Defendant-Appellant.



054-12



Michael B. Mednick, Esq.

Town Attorney, Town of Thompson

4052 Route 42 North

Monticello, NY 12701

Attorney for Respondent

Frederick Schumacher

85 Bowers Road

Rock Hill, NY 12775

Defendant-Appellant Pro Se

Frank J. LaBuda, J.

Appellant appeals two orders from the Town of Thompson Justice Court determining his dog was a "dangerous dog" as defined in the Agriculture and Markets Law, §121.[FN1]

The first "order" was rendered in open court after a hearing on January 13, 2011. There was no written order or decision immediately following that hearing. Subsequently, on or about the 10th day of March, 2011, another hearing took place in the Town of Thompson Justice Court regarding the same dog being involved in a separate incident a month earlier and subsequent to the January 13 hearing. The Justice Court found defendant-appellant (hereinafter, "appellant") to be in violation of the Court's previous order from the January 13 hearing and imposed a fine and other restrictions and conditions regarding the subject animal. The Hon. Perry Meltzer issued written findings and a decision, said order dated July 4, 2011.

[*2]Procedural Background

Appellant timely filed a Notice of Appeal with the Clerk of the Town of Thompson Justice Court on July 19, 2011, and served the Notice of Appeal by mail on Respondent through its attorney, the Town of Thompson attorney. Because the proceedings were mechanically/electronically recorded, Appellant ordered transcripts. Upon receiving a copy of the transcripts of the proceedings, Appellant submitted those copies to the Town Attorney, who stipulated to their correctness. Appellant then timely filed his Notice of Argument, Appellant's Brief, and Record on Appeal with the Clerk of the Sullivan County Court on January 3, 2012.

Having received no reply from Respondent to his Notice of Argument and Brief, Appellant contacted the Clerk of the Sullivan County Court by letter dated January 31, 2012, inquiring as to whether the Court received any responding papers from Respondent. By letter dated February 7, 2012, the Clerk of Court informed Appellant that as of that date, the Court had not received any response papers from Respondent.

On February 9, 2012, Respondent filed a Motion to Dismiss, and on February 16, 2012, Appellant filed a Cross-motion for Default against Respondent for failure to timely respond to Appellant's brief, and as a response to Respondent's Motion to Dismiss. Respondent filed a Sur-Reply.

In its Motion to Dismiss, Respondent asserts that Appellant failed to properly serve Respondent with the Notice of Appeal and failed to file an affidavit of errors and follow the procedural requirements pursuant to CPL §460.10(3)(a). Alternatively, Respondent argues that if this Court were to treat the transcription from the mechanical recording from the Justice Court the same as a transcription from a stenographic recording, the appeal should be dismissed because Respondent claims Appellant still failed to serve the Notice of Appeal and also failed to serve the Notice of Argument, Brief and Record on Appeal on Respondent.

Discussion

A party wishing to appeal an order, judgment or sentence must file "with the clerk of the criminal court in which such sentence was imposed" a written notice of appeal within 30 days of the imposition of such order judgment or sentence. CPL §460.10(1)(a). In addition, when a defendant is the appellant, the defendant, within that same 30-day period, must serve a copy of the notice of appeal on the district attorney "of the county embracing the criminal court in which the judgment or order being appealed was entered." CPL §460.10(1)(b). Generally, there are no exceptions to these rules and the failure of a party to timely file the notice of appeal is a fatal procedural flaw.

The process of continuing with the appellate procedure from local to County Court, however, becomes less clear after one files the Notice of Appeal. For criminal matters, if the "underlying proceedings were recorded by a court stenographer" an appellant follows the [*3]procedures in CPL §460.10(1). CPL §460.10(2). If the underlying proceedings were not recorded by a court stenographer, the appeal is taken pursuant to CPL §460.10(3).

Our courts in New York have kept pace with the advances in science and communication in the courtroom. Indeed, as of 2008, it is now a requirement that all town and village justice courts mechanically record all court proceedings.[FN2] Such advances, however, have created confusion with regard to which section of CPL §460.10 one needs to follow.

In the years since local courts have started using mechanical and electronic audio recordings of proceedings, attorneys and pro se appellants have not strictly adhered to the requirements under CPL §460.10(3). Disagreement has arisen as to whether a mechanical or electronic audio recording of lower court proceedings may be treated in the same manner as a stenographic record for purposes of the appellate process from local courts to county or intermediate appellate courts.

The matter remains unsettled. In People v. Guernsey, et al., 136 Misc 2d 791, 792 [Co. Ct. Schoharie Co. 1987] the court stated,

[W]here the underlying proceedings are electronically tape recorded, such record becomes the functional equivalent of a court stenographer....[T]his Court holds and determines that defendant-appellant should be required to obtain a transcript thereof, rather than being permitted to file and serve and Affidavit of Errors."

In contrast, in People v. Bartholomew, 31 Misc 3d 698 [Co. Ct. Broome Co. 2011], the court held that "where proceedings are not recorded by a court stenographer physically present in the courtroom at the time, any appeal of those proceedings must be taken in accordance with CPL §460.10(3)." The Bartholomew court viewed the issue of whether a mechanical recording can be substituted for a stenographic record as a jurisdictional issue. The court stated,

Whether an appeal from a local criminal court is properly taken, and thereby provides the appellate court with jurisdiction, turns then on whether the underlying proceedings were "recorded by a stenographer" not whether a sufficient record can be prepared.

Id. At 701. As of this writing, the matter has not been reviewed by an Appellate Division or the Court of Appeals.

Based on a review of Judiciary Law, §290-a (expired in 1999), the Chief Administrative Judge's Order requiring the use of mechanical recording of proceedings in town or village justice courts, [Administrative Order of the Chief Administrative Judge of the Courts, [*4]AO/245/08],[FN3] and considering the lack of definitive case law from an appellate court, this Court holds that for purposes of taking an appeal pursuant to CPL §460, a mechanical recording is equivalent to a stenographic record taken by a stenographer. A mechanical recording, however, must be treated in the same manner as a stenographic record, meaning an appellant must have the recording transcribed in the same manner in which a stenographic record would be transcribed, and the transcription is subject to review, corrections, or stipulation to correctness by the parties.

In the instant matter this Court holds that Appellant's following of the procedures set forth in CPL §460.10(1), as directed by CPL §460.10(2), was not in error.[FN4] To hold otherwise would undermine the spirit of the Chief Administrative Judge's Order of 2008, which clearly seeks to transition the New York State Unified Court System from a cumbersome and time consuming procedural system for local courts to a modernized and streamlined process. An appellant need not adhere to a statutory scheme that was appropriate when one used a quill and ink to generate a subjective affidavit of errors based on recollection of court proceedings; New York's local courts now have an economic, accurate, and expedited way, by mechanical recordings, to provide appellants with a transcribed record equivalent to a stenographic recording.

The only matters left for this Court to decide, therefore, are whether Appellant timely filed and served the Notice of Appeal, and if so, whether he properly served the Notice of Argument and Brief.

After a very careful review of all of the papers submitted by both parties, this Court finds that Appellant timely filed and properly served the Notice of Appeal. Appellant has provided this Court with an affidavit of service, as well as a copy of the certified return receipt, bearing the signature of Paula Kay, Esq., a town attorney for the Town of Thompson, and the attorney who handled this matter at the trial level in the Town of Thompson Justice Court. Clearly, Ms. Kay received the Notice of Appeal. Although the statute requires service on the District Attorney, this matter was handled by the Town Attorney, and therefore the Town of Thompson Attorney was the proper recipient of service.

Appellant has also provided this Court with a copy his transmittal letter and a copy of a signed certified return receipt used for service of the "record" on appeal on Paula Kay, Esq. Ms. Kay signed a Stipulation to Accuracy of Transcripts on November 28, 2011. [*5]

Appellant timely perfected the appeal by filing all documents with the Sullivan County Court Clerk. It is unknown why, however, Appellant chose to send the Notice of Argument, Brief and Record on Appeal to the Justice Court Clerk rather than address it to the Town Attorney, to whom he had sent previous correspondence and documents. Respondent correctly points out that Appellant used several different addresses for mailing documents and correspondence to the Town Attorney. That is not an issue, however, as the Town Attorney received all of the documents as evidenced by signed return receipts. With regard to the Notice of Argument, Brief, and Record on Appeal, however, there is no indication Ms. Kay, another assistant Town Attorney, or the Town Attorney himself signed for the documents. Appellant's affidavit of service does not specify the documents were sent to Ms. Kay, Michael B. Mednick, Esq., the Town Attorney, or even addressed to the attention of the Town Attorney. The Town Attorney maintains his office did not receive the documents.

Such an error, however, will not result in dismissal of the appeal. Pursuant to CPLR §5520(a), if an appellant has timely filed the notice of appeal, but neglects through mistake to otherwise do another required act within the time limit within which to perfect, the appellate court or court of original jurisdiction may grant an extension of time for appellant to cure the mistake or omission. In this case, the Court will allow Appellant to serve the Notice of Argument, Brief, and Record on Appeal, on the Respondent, through the Town of Thompson Attorney.

Based upon the above, it is

ORDERED, that Respondent's Motion to Dismiss the appeal is denied, and it is further

ORDERED, that Appellant's Cross-Motion finding Respondent in Default is denied, and it is further

ORDERED, that Appellant shall serve the original Notice of Argument, an Amended Notice of Argument setting a new date, the Brief, and Record on Appeal upon Respondent, addressed to the Town of Thompson Attorney, Michael B. Mednick, Esq. at 4052 Route 42 North, Monticello, NY 12701, within 15 days of the date of this Decision and Order, and it is further

ORDERED, that Appellant shall file the Amended Notice of Argument with proof of service, with the Clerk of the County Court within five (5) days of serving the appellate documents on Respondent.

This shall constitute the Decision and Order of this Court.

DATED: April 3, 2012

Monticello, New York

______________________________

Hon. Frank J. LaBuda

Sullivan County Court Judge

and Surrogate Footnotes

Footnote 1:Agriculture and Markets Law, §121 has since been changed to §123, effective January 1, 2011, but will be referred to as §121 herein as the matter was brought under that former section prior to January 1, 2011.

Footnote 2:Administrative Order of the Chief Administrative Judge of the Courts, AO/245/08.

Footnote 3:Administrative Order AO/245/08, dated May 21, 2008, went into effect on June 16, 2008. By that order, then Chief Administrative Judge Ann Pfau ordered that every town and village court of the Unified Court System must mechanically record all proceedings before that court.

Footnote 4:The instructional sheet from the court regarding the procedure for taking and perfecting appeals to Sullivan County Court indicated minutes from a stenographic or electronic recording would be available to an appellant upon request, leading the average layperson to believe they are equivalent and treated the same for purposes of an appeal.