of the State of New York for the 9th & 10th judicial Districts

ANTHONY MARANO, P.J.

BRUCE E. TOLBERT

JERRY GARGUILO, JJ.

ORDER TO SHOW CAUSE

Appeal from a judgment of conviction of the Justice Court of the Town of Milan, Dutchess County, rendered April 23, 2015.

On the court's own motion, it is

ORDERED that the parties show cause before this court why the above-entitled appeal should or should not be dismissed on the ground that the appeal was not properly taken: (a) in that the notice of appeal was not served upon the District Attorney as required by CPL 460.10 (1) (b); and (b) in that the trial proceedings were recorded electronically and no affidavit of errors was filed, by filing an affidavit or affirmation on those issues with the Clerk of this court on or before September 30, 2016; and it is further,

ORDERED that the Clerk of this court, or his designee, is directed to serve a copy of this order to show cause on the parties by regular mail.

CPL 460.10 (1) (b) mandates that, within 30 days of the imposition of sentence, an appellant serve a notice of appeal upon the District Attorney. Moreover, 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. Appellant, if so advised, may apply for an extension of time to serve the notice of appeal upon the District Attorney (see CPL 460.10 [6]) and for a writ of error coram nobis seeking an extension of time to file an affidavit of errors (see People v Smith, 52 Misc 3d 143 [A], 2016 NY Slip Op 51218[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]).

ENTER:

Paul Kenny

Chief Clerk