People v. Ballard

Full title: The People of the State of New York, Respondent, v. Michael J. Ballard…

Court: Supreme Court, Appellate Term, Second Dept., 9th & 10th Judicial Districts

Date published: Feb 7, 2018

2018 N.Y. Slip Op. 64400 (N.Y. App. Term 2018)

2018 N.Y. Slip Op. 64401

Opinion

Motion No: 2017-01723 SCR

02-07-2018

The People of the State of New York, Respondent, v. Michael J. Ballard, Appellant.

ANTHONY MARANO, P.J.

BRUCE E. TOLBERT

JERRY GARGUILO, JJ.

DECISION & ORDER ON MOTION

Motion by appellant for leave to prosecute an appeal from a judgment of conviction of the Justice Court of the Town of Shelter Island, Suffolk County, rendered August 21, 2017, as a poor person, and for the assignment of counsel. By order to show cause dated November 22, 2017, appellant was directed either to show cause before this court why the appeal should not be dismissed on the ground that the appeal was not properly taken in that no affidavit of errors was filed, or, if so advised, to make a motion in this court pursuant to CPL 460.30 for an extension of time to file an affidavit of errors. Separate motion by appellant to continue a stay of execution of the sentence which was granted by the Supreme Court, Suffolk County on August 25, 2017.

Upon the order to show cause and the papers filed by appellant in response thereto, and upon the papers filed in support of the motions and the papers filed in opposition to the motion for leave to prosecute the appeal as a poor person, it is

ORDERED, on the court's own motion, that appellant's time to move in this court pursuant to CPL 460.30 for an extension of time to file an affidavit of errors is extended 30 days from the date of this decision and order on motion; and it is further,

ORDERED that appellant's motions are held in abeyance in the interim.

In People v Smith (27 NY3d 643 [2016]), the Court of Appeals held that, for the purpose of taking an appeal, a record made from a mechanical recording is not the equivalent of a record made by a court stenographer and that an affidavit of errors is required for such an appeal to be properly taken. In the instant matter, it appears that the minutes of the arraignment and of the jury's rendition of verdict were electronically recorded. Absent an affidavit of errors, this court lacks jurisdiction to entertain the appeal.

ENTER:

Paul Kenny

Chief Clerk