| People of State of New York v Michael J. Ballard |
| Motion No: 2017-01723 SCR |
| Slip Opinion No: 2017 NY Slip Op 93762(U) |
| Decided on November 22, 2017 |
| Appellate Term, Second Department, Motion Decision |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This motion is uncorrected and is not subject to publication in the Official Reports. |
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
| The People of the State of New York, Respondent, v Michael J. Ballard, Appellant. |
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.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
ORDERED, on the court's own motion, that appellant is directed either (1) to show cause before this court why the above-entitled appeal should not be dismissed on the ground that the appeal was not properly taken in that no affidavit of errors was filed, and no application pursuant to CPL 460.30 for an extension of time to file an affidavit of errors has been made, by filing an affidavit or affirmation on that issue with the Clerk of this court on or before December 15, 2017, or (2) 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; 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; and it is further,
ORDERED that appellant's motion is 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 were electronically recorded.
ENTER:
Paul Kenny
Chief Clerk