Counsel must file affidavit of errors to preserve client’s right to appeal from judgment of conviction in a local criminal court

Published on June 30, 2016 2:17 pm by Piotr Banasiak in Appeals Blog

In People v Smith (__ NY3d __, 2016 NY Slip Op 4973 [2016]), the Court of Appeals recently held that “an affidavit of errors is a jurisdictional prerequisite for the taking of an appeal from a local court where there is no court stenographer”.  This means that trial counsel must file an affidavit of errors to preserve a client’s right to appeal a judgment of conviction rendered in a local criminal court “in which the underlying proceedings were not recorded by a court stenographer” (CPL 460.10 [3]).

The affidavit of errors requirement is found in CPL 460.10.  That statute says that an appellant is required to file, within 30 days, “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” (CPL 460.10 [3] [a]).  If the appellant first files a notice of appeal, he must then file, within 30 days of the filing of the notice of appeal, an affidavit of errors (id.). “ ‘[T]he appeal is deemed to have been take’ ‘[u]pon the filing and service of the affidavit of errors as prescribed’ ” (People v Smith, 2016 NY Slip Op 4973, quoting, CPL 460.10 [3] [c]).

In Smith the Court of Appeals specifically rejected the argument that recording court proceedings electronically is the functional equivalent of a record taken by a court stenographer (id.). In other words, an affidavit of errors must be filed even if court proceedings were electronically recorded. A defendant’s “failure to do so is a jurisdictional defect requiring dismissal” (id.).

Given the jurisdictional nature of the affidavit of errors, trial counsel has a duty to file the affidavit, along with a notice of appeal (see 22 NYCRR § 1022.11 [a]). Failing to fulfill this jurisdictional prerequisite, and preserving a client’s right to appeal, could result in a finding of ineffective assistance of counsel (see People v Syville, 15 NY3d 391, 398 [2010] [“When counsel’s omission causes a defendant to lose the right to perfect or obtain merits consideration of an appeal, the deficient performance amounts to ineffective assistance of counsel in violation of the Due Process Clause”]).

A template for an affirmation of errors can be found here.