DECISION and ORDER Issue: By letter dated September 5th, 20191, the Defendant’s Counsel demands a response to their letter to the Court in which they accuse the Court of “ex parte communication/collusion with the District Attorney” and states “the immediacy of the Court’s response necessarily indicates some ex parte communication/collusion between the Court and the Assistant District Attorney.” The Appellant’s Counsel further states: “I demand an immediate response to this correspondence. I promise to take action to obtain a number of remedies tomorrow, September 6th…”. In the interest of Judicial Economy, the Court accepts this letter as a “motion” for reargument of its prior decision regarding dismissal of the appeal for failure to perfect. The District Attorney has been given an opportunity to respond and has responded by letter dated September 10th, 2019. The issue before the court is whether the Appellant perfected his appeal. Procedural Status: On August 30th, 2019 upon receiving a letter application on notice to the Appellant from the District Attorney’s Office asking the court to dismiss the Defendant’s appeal for failure to perfect2, the Court reviewed its file. In the Court’s file was Defendant/Appellant’s Notice of Appeal filed on May 24th, 2019 which Appellant filed with the Supreme Court Clerks. Conspicuously absent from the Defendant’s appeal was the filing of an “Affidavits of Errors” or proof that an “Affidavit of Errors” had been served upon the Mamakating Justice Court. Since no “Affidavit of Errors” had been filed by the Appellant, no “Return” had been filed by the Town of Mamakating Justice Court, the Court of original jurisdiction. It is noted here that the Notice of Appeal filed by Orseck Law Offices for Appellant was defective on its face in that the Notice of Appeal “Appeals to the Sullivan County Court from the Judgment of the Town of Mamakating Court (Rhyne, J.). There is no such Judge in the Town of Mamakating Court.3 Further, there was no Motion or application from Appellant or Respondent asking this Court to Order the Justice Court to file their return nor asking the Court for additional time to file a late “Affidavit of Errors.” The Court had already given the Appellant an additional sixty (60) days to perfect his appeal by Decision and Order of this Court dated June 10th, 2019; such time had expired on August 12th, 2019. This was pointed out by Assistant District Attorney Kevin Mulryan in his letter response of September 10th, 2019 wherein he states: “To be clear, it is the People’s position that the Defendant failed to perfect their appeal in accordance with the Court’s instructions and in the manner prescribed by CPL §460.10. Specifically, the Court instructed the defendant to perfect his appeal by August 12, 2019. To my knowledge, the defendant has at no point filed an affidavit of errors with the local criminal court as required by CPL §460.10(3)(a). Opinion: Pursuant to CPL §460.10(3) “An appeal taken as of right to a county court or to an appellate term of the supreme court from a judgment, sentence or order of a local criminal court in a case in which the underlying proceedings were not recorded by a court stenographer is taken as follows: (a) Within thirty days after entry or imposition in such local criminal court of the judgment, sentence or order being appealed, the appellant must file with such court 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. Where a notice of appeal is filed, the appellant must serve a copy thereof upon the respondent in the manner provided in paragraphs (b) and (c) of subdivision one, and, within sixty days after the appellant receives a transcript of the electronically recorded proceedings, must file with such court an affidavit of errors. Upon the filing of the Affidavit of Errors and service of the affidavit of errors [emphasis added] as prescribed in this section, the appeal is deemed to have been taken. 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. The Court of Appeals has ruled on this issue numerous times. In People v. Flores, 30 N.Y.3d 229 [2017 Court of Appeals], the Court of Appeals states basic Hornbook Law: “failure to perfect the appeal by filing of an Affidavit of Errors is a jurisdictional defect.” The Court further stated: “It is a fundamental precept of the jurisdiction of our appellate courts that no 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).” In People v. Smith, 27 NY3d 643 [2016 Court of Appeals], in deciding the issue of whether CPL 460.10(3) required a defendant who was convicted in a local court that was not designated as a court of record and did not have a court stenographer present during proceedings, to submit an affidavit of errors in order to take an appeal the court held: “Defendants’ appeals should have been dismissed for failure to comply with CPL 460.10(3) because defendants failed to file an affidavit of errors and instead provided a transcript derived from an electronic recording of the underlying proceedings; CPL 460.10 was free from ambiguity and expressed plainly, clearly, and distinctly the legislative intent that where the underlying proceedings were not recorded by a court stenographer, a defendant had to file an affidavit of errors.” Since the Appellant’s Counsel herein failed to file an “Affidavit of Errors” with the Justice Court and failed to file same with this Appellate Court and failed to provide proof of filing, the Appellant’s Counsel has failed to perfect his client’s appeal. Therefore, this Court lacks jurisdiction to hear this appeal. Accordingly, Counsel’s motion to re-argue has been considered on the merits and dismissed for failure to perfect the appeal pursuant to CPL §460.10(3) and People v. Smith, supra, 27 NY3d 643 [2016 Court of Appeals]. The Courts prior decision and order dated August 30th, 2019 shall stand and the Appellant’s Appeal is dismissed for failure of Appellant’s Counsel4 to perfect the appeal. This shall constitute the Decision and Order of this Court. Dated: September 11th, 2019 Monticello, New York
