Matter of Shannel P. (2014 NY Slip Op 50154(U))

Matter of Shannel P.

2014 NY Slip Op 50154(U) [42 Misc 3d 1222(A)]

Decided on February 10, 2014

Family Court, Queens County

Hunt, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

This is a juvenile delinquency proceeding commenced by the Corporation Counsel of the

City of New York as Presentment Agency in which it is alleged that the respondent, Shannel P.,

committed acts which, were she an adult, would constitute the crimes of Overdriving, Torturing

and Injuring Animals; Failure to Provide Proper Sustenance (a class A misdemeanor pursuant to

Agriculture and Markets Law §353), and Aggravated Cruelty to Animals (a class E felony under

Agriculture and Markets Law §353-a [1]).^[FN1]

Following preliminary proceedings before another Family Court Judge, this matter was

assigned to one of the two trial parts of the court for a suppression hearing and a fact-finding

hearing. All of the proceedings before this Court were conducted with the assistance of an

official court interpreter in the Spanish language, whose presence was requested by the attorney

for the respondent for the benefit of the respondent and both of her parents who were present for [*2]

the proceedings (see, Fam. Ct. Act §341.2 [1], [3] Matter of Edwin N., 51 AD3d 928, 928-929

[2008], lv denied 11 NY3d 705 [2008]).

A Wade hearing involving the testimony of a peace officer employed by the ASPCA

(Criminal Procedure Law §2.10 [7]) was conducted on January 21, 2014. Upon the conclusion of

that hearing, the fact-finding hearing commenced and the testimony of an eyewitness was taken.

Due to inclement weather, the trial was continued until January 23, 2014, and on that date, a total

of five witnesses were called to testify by both parties. At the conclusion of the court session on

January 23rd, the case was continued to conclude the fact-finding hearing the following day,

Friday, January 24th.

The portions of the fact-finding hearing conducted on January 21st and January 23rd were

duly recorded by an official court reporter employed by the Unified Court System and assigned to

the courtroom those days. The testimony of the multiple witnesses, all of the court's rulings, as

well as on-the-record colloquy had been recorded by the official court reporters present for the

proceedings. However, when the Court prepared to resume the trial on January 24th to receive

the testimony of the remaining two witnesses to be called by the respondent, the Court learned

that due to a shortage of court reporters, court managers decided not to assign a court reporter to

the courtroom that day. As no court reporter had been assigned to the courtroom for January 24,

2014, it was apparently assumed by court managers that the Court would simply default to

using the "For the Record" ("FTR") electronic recording system which has been installed in

many courtrooms across the state by the Office of Court Administration.

The FTR recording device requires that the presiding officer (whether a judge or a

quasi-judicial hearing officer) manually turn the taping system on and off by means of pushing a [*3]

button. Litigants, counsel, witness, and court personnel are alerted to the operation of the

recording system by means of a "time clock" which resembles a basketball shot clock. While

recording proceeds, the time clock displays moving red digits which relate to the record made of

all proceedings which are electronically recorded in the courtroom that day. The FTR system is

wired into the court's electronic record system keeping known as "UCMS" and the UCMS record

for a particular case will show the location of the digital recording of all court appearances for

the case or, where an actual court reporter was assigned to the courtroom, indicate the name of

the official court reporter who was present for a particular court appearance.

The parties in this proceeding were informed by the Court that there was no official court

reporter assigned to the courtroom on Friday, January 24th, and that the only available alternative

recording option was the court's electronic FTR system. Counsel for both sides objected to the

mid-trial use of the electronic recording system, as the prior two days of testimony had been

recorded by an official court reporter. The Court considered that this case involves a felony

charge which garnered some pre-trial publicity some months earlier, and it was necessary to

utilize the services of an official court interpreter in order to provide audible simultaneous

translation of the proceedings for the respondent and both of her parents.

The Court also took into account that the presentment agency's entire direct case had

been recorded by an official court reporter, and that the defense was expected to present the

critical part of its case on January 24th, consisting of the testimony of the respondent and her

mother and their cross-examination by the prosecuting attorney. Also pertinent was the fact that

the defense witnesses required the services of a court interpreter to provide audible simultaneous

interpretation of the proceedings. Therefore, as a matter of fairness to the respondent, the court [*4]

was prepared to grant the parties' request for a further continuance to a day when a court reporter

would be present to take notes of the proceedings.

Ultimately, with the assistance of the supervising court reporter and the cooperation of

another Judge, the Court was able to secure the services of an official court reporter for the

remainder of the fact-finding hearing. Although the immediate issues raised here were resolved

and an unnecessary continuance of the hearing was avoided, given the continuing shortage of

official court reporters due to fiscal constraints and the proliferation of electronic recording in

trial courts, this is an issue of importance which is likely to recur in the future (see, Matter of

Hearst Corporation v. Clyne, 50 NY2d 707, 713-714 [1980] City of New York v. Maul, 14

NY3d 499, 507 [2010] People ex rel. McManus v. Horn, 18 NY3d 660, 664 [2012] Matter of

Brianna L., 103 AD3d 181, 186 [2012]).

The Family Court is a "court of record" (NY Const, art VI, §1 [b] Judiciary Law §2 [8]),^[FN2]

and as such, it is required to make a record of its proceedings. In 1962 the Family Court replaced

the Children's Court and the Domestic Relations Court throughout the state (L 1962, ch 688; NY [*5]

Const, art VI, §13; Fam. Ct. Act §113). The Children's Court and the Domestic Relations Court

were also courts of record and both courts employed court stenographers to record their

proceedings (see, Anonymous v. Anonymous, 24 NYS2d 613, 615 [Dom Rel 1940] Sternau v.

Sternau, 189 Misc 856, 858 [Dom Rel 1947] Fontana v. Fontana, 194 Misc 1042, 1043-1045

[Dom Rel 1949] Matter of Lewis v. Lewis, 5 AD2d 674, 676 [1957], app dismissed 4 NY2d 872

[1958] Bogart v. Bogart, 13 AD2d 826 [1961]).^[FN3]

Most jurisdictions, including New York, regulate the profession of shorthand or court

reporting and conduct examinations to ensure that persons seeking appointment to the office of

court reporter are duly qualified (Judiciary Law §291; see also, In re Application of Herrick, 82

Haw 329, 342, 922 P2d 942, 955 [Sup Ct 1996] Board of Examiners of Certified Shorthand

Reporters [Juge] v. Neyrey, 542 So2d 56, 58 [La Ct App 1989], writ denied 548 So2d 1231 [La

Sup Ct 1987]).

Regulation of the profession is essential as official court reporters are officers of the court

in which they serve (Judiciary Law §290; Matter of Conklin v. Rogers, 98 AD2d 918 [1983]

People v. Hull, 13 Misc 2d 969, 970 [1958]), and pursuant to law, official court stenographers

"creat[e] the official record of court proceedings" (Matter of Lippman v. Public Employment

Relations Board, 296 AD2d 199, 200 [2002], lv denied 99 NY2d 503 [2002]).^[FN4]

Each stenographer specified in this chapter . . . must take full stenographic notes

the presiding judge, and when the trial is by jury each and every remark or comment

of such judge during the trial, when requested to do so by either party, together with

each and every exception taken to any such ruling, decision, remark or comment by

This section of the Judiciary Law has been interpreted to require "that full stenographic

notes be taken of all trial proceedings" (People v. Harrison, 85 NY2d 794, 796 [1995] see also,

People v. Koufomichalis, 2 AD3d 987, 989 [2003], lv denied 2 NY3d 742 [2004]). The mandate

that the court reporter take full stenographic notes has, in turn, been interpreted to require a

"[v]erbatim recordation of the proceedings" (Harrison, 85 NY2d at 796), unless that is waived

by the parties (People v. Fearon, 13 NY2d 59, 61 [1963] People v. Faulkner, 36 AD3d 1071,

1072 [2007]).

A "verbatim" record of judicial or administrative proceedings includes "a transcript of

any testimony taken" (Matter of Collins v. Hammock, 96 AD2d 733, 734 [1983]), and it must

accurately state what was said (Matter of Smith v. Gwydir, 86 AD2d 673, 674 [1982]). In other

words, a verbatim record includes "anything and everything which is said by anyone in the

course of judicial proceedings" (Gerdes v. Klindt's Inc., 247 Neb 138, 139, 525 NW2d 219, 220

[Sup Ct 1995] see also, Fearon, 13 NY2d at 61; Harrison, 85 NY2d at 796).

While official court reporters are obligated to ensure that the notes and any transcript of

the court proceedings are accurate (Conklin, 98 AD2d at 918; Kearney v. City of New York, 144

Misc 2d 201, 202 [1989] People v. Henry, 167 Misc 2d 1027, 1030 [1996]), that duty does not [*6]

rest upon the court reporter alone. Trial judges are responsible for ensuring that the court reporter

is accurately making a record of the court's proceedings (In re Guardianship of Breeahana C., 14

Neb App 182, 188, 706 NW2d 66, 71 [Ct App 2005] see also, Gerdes, 247 Neb at 139; In re

Interest of Tyler T., 279 Neb 806, 810, 781 NW2d 922, 924 [Sup Ct 2010]).

In recent years, New York and other jurisdictions have adopted procedures allowing for

the electronic recording of judicial proceedings in lieu of the making of notes by an official court

reporter.

New York's first foray into electronic recording of court proceedings occurred in 1992

(L 1992, ch 55, §414) when "the Legislature approved a two-year experimental austerity measure

under which [the] Chief Administrator of the Courts was permitted to authorize the use of

mechanical recording of testimony and of other proceedings in each cause, in lieu of the taking

of stenographic minutes thereof, in: (i) a surrogate's court in any county; and (ii) the court of

claims" (Bloom v. Crosson, 183 AD2d 341, 342-343 [1992], aff'd 82 NY2d 768, 769 [1993]

see also, Association of Surrogate's and Supreme Court Reporters within the City of New York

v. State of New York, 1995 WL 555777 at *1 [SDNY 1995]).

The 1992 legislation created a limited exception to the provisions Judiciary Law §295

requiring that court stenographers make a verbatim record of court proceedings (Bloom, 183

AD2d at 343), and absent authorization by a Deputy Chief Administrative Judge to assign a court

reporter, the "tape recording of all proceedings was mandatory and would be the official court

record (id.). [*7]

The implementation of the 1992 legislation by court administrators was unsuccessfully

challenged in both state and federal court by affected Surrogate's Court Judges, court reporters

who were involuntarily transferred to other courts, attorneys practicing before Surrogate's

Courts and litigants. Although the state court action focused on the power of the Chief

Administrator to implement the 1992 legislation, the Appellate Division held that the Chief

Administrator was authorized to implement electronic recording in the Surrogate's Courts and

the Court of Claims "by virtue of the enactment of section 414 [L 1992, ch 55, §414]" (Bloom,

183 AD3d 345). The Appellate Division also disagreed with the trial court's belief that the 1992

legislation "would repeal by implication, numerous statutes dealing with the taking of testimony

in Surrogate's Court and the appointment of court reporters" (id.). To the contrary, the Appellate

Division found that the 1992 legislation was essentially "a cost-saving measure" which would

allow court reporters from the affected courts to be reassigned to replace court reporter positions

in other courts which had become vacant "through attrition" (Id. at 345-346).

The authorization for limited electronic recording authorized by the 1992 legislation

expired on April 15, 1994 (L 1992, ch 55, §427 [gg]). Thereafter, in 1995 the Legislature enacted

Judiciary Law §290-a, which temporarily superseded the provisions of the Judiciary Law relating

to court stenographers and the making of the court record (L 1995, ch 83, §202). The 1995

legislation was also limited in scope and the enacted statute, Judiciary Law §290-a provided, in

pertinent part, that:

stenographic minutes thereof: (i) in a surrogate's court in any county; (ii) in the

court of claims; (iii) in civil cases heard in city and district courts, in the New [*8]

three, seven and eight of the family court act, in the family court (Judiciary Law

The 1995 electronic recording provisions codified in Judiciary Law §290-a were "deemed

to have been in full force and effect on and after April 1, 1995 [and] shall be deemed repealed

and of no further force or effect on and after April 1, 1997" (L 1995, ch 83, §362 [14]). However,

the provisions of the statute were subsequently extended until June 30, 1999 (see, State Finance

Law §160, note 14) and thereafter were "deemed repealed and of no further force and effect".

The force of Judiciary Law §290-a expired by reason of the termination of the specified

time limit expressed in the authorizing legislation (see, McKinney's Cons Laws of NY, Book 1,

Statutes §374 [West 1971]). The 1995 electronic recording legislation, like the earlier 1992

electronic recording legislation, was intended as a temporary and limited suspension of other

provisions of law relating to the taking of minutes and the official record in the affected courts.

There is nothing in the 1992, 1995 or 1997 legislation (which extended the provisions of

Judiciary Law §290-a until June 30, 1999) providing for a repeal of any other provisions of law, and

it is "the fundamental tenet of statutory construction that implied repeal or modification of a

preexisting law is distinctly disfavored" (Local Government Assistance Corp. v. Sales Tax

Receivable Corporation, 2 NY3d 524, 544 [2004] see also, Alweis v. Evans, 69 NY2d 199, 204

[1987] Matter of Town of Brookhaven v. New York State Board of Equalization & Assessment, 88

NY2d 354, 361 [1988]). Accordingly, as nether the 1992 legislation nor the 1995 legislation, which

enacted Judiciary Law §290-a, repealed existing provisions of law relating to court reporters and the

mode of making the record (see, Bloom, 187 AD2d at 345), the provisions of Judiciary Law §295

continue to be controlling in the courts of record. [*9]

Although the authority to record judicial proceedings electronically was deemed repealed

over 14 years ago, as one court observed "[o]nce the law expired in 1999, the Chief Administrative

Judge began exercising complete administrative discretion and expanded the use of mechanical

recording in lieu of stenographers" (People v. Bartholomew, 31 Misc 3d 698, 700-701 [2011]).

A recent decision by a Family Court Judge in a family offense proceeding also illustrates that the

present use of mechanical recording even exceeds what had been authorized by the Legislature prior

to the repeal of Judiciary Law §290-a on June 30, 1999 (Matter of Rosales, 40 Misc 3d 1216A, 2013

NY Slip Op 51211U at *3).

California has similar statutes relating to court stenographers and their duties.^[FN5] In the fairly

recent past, the California Legislature enacted laws which authorized the electronic recording of

proceedings in its Superior Court on a temporary basis.^[FN6]

The electronic recording system enacted in California was temporary, similar to that enacted

in New York. While electronic recording of judicial proceedings continued after the expiration

of the period authorized by the state legislature in both jurisdictions, California's experience differs

from New York's experience in two significant respects- the continued electronic recording

in California was directed by court rules effective after the time period for electronic recording [*10]

authorized by its legislature lapsed, and those rules and the practice of electronic recording without

legislative sanction were challenged in a lawsuit brought by the state court reporters association

and others(California Court Reporters Association v. Judicial Council of California, 39 CalApp4th

15, 30-31, 46 CalRptr 44, 54-55 [1st Dist 1995] [hereinafter CCRA I] California Court Reporters

Association, Inc. v. Judicial Council of California, 59 CalApp4th 959, 964, 69 CalRptr2d 529, 531

[1st Dist 1997] [hereinafter CCRA II]).

In 1986 the California Legislature added §270 to the Code of Civil Procedure. That provision

"created a statewide demonstration project whereby up to 75 superior courtrooms were

authorized to use electronic recording instead of shorthand reporters. In the courtrooms selected

to operate under the demonstration project, audio and video recordings could be used in lieu of

the verbatim record prepared by a court reporter except in criminal or juvenile proceedings"

(Los Angeles County Court Reporters Association v. Superior Court of Los Angeles County, 31

CalApp4th 403, 407-408, 37 CalRptr2d 341, 344-345 [hereinafter Los Angeles County Reporters]).

"The effect of [Code of Civil Procedure] section 270 was simply to override section 269

insofar as the demonstration courtrooms were concerned. Thus, section 270 permitted the use of

electronic recording devices in the demonstration courtrooms in place of the services of an official

shorthand reporter in those instances where section 269 would otherwise have required that a

verbatim record be taken by an official reporter" (Los Angeles County Reporters, 31 CalApp4th

at 409, 37 CalRptr2d at 27; see also, CCRA I, 39 CalApp4th at 25, 46 CalRptr2d at 52).

The electronic recording "demonstration project expired on January 1, 1994" (Los Angeles

County Court Reporters, 31 CalApp4th at 409, 37 CalRptr2d at 345), and"[t]he statute ceased to

have any effect when it expired on January 1, 1994" (CCRA I, 31 CalApp4th at 27, 37 CalRptr2d [*11]

at 52). Notwithstanding the expiration of the statutory authority for limited electronic recording,

[i]n November 1993, the Judicial Council adopted Rules of Court allowing official electronic

recording of superior court proceedings after January 1, 1994 [and] [t]he Alameda County Superior

Court also adopted local rules governing the electronic recording of its proceedings" (CCRA I,

39 CalApp4th at 19, 46 CalRptr2d at 46), and "[i]n December 1993 [the] California Court Reporters

Association, Alameda County Official Court Reporters Association, and five individuals petitioned

[for] a writ of mandate to preclude the Judicial Council and Alameda County officials from

implementing the electronic recording rules" (Id. at 19, 46-47).

The court reporters argued that the rules of court authorizing electronic recording in the

Superior Court after January 1, 1994 "are inconsistent with statute . . . [and] that these rules are

contrary to the Legislature's intent that the official superior court record be made by official court

reporters" (Id. at 20, 47-48). In holding the Judicial Council's announced rules for electronic

recording impermissible, the Court of Appeal stated that "the Judicial Council may not adopt rules

that are inconsistent with governing statutes" (Id. at 22, 48).

In assessing whether the rules announced by the Judicial Council were lawful, the Court

noted that while "there is no statute expressly prohibiting a superior court from making an official

record by electronic means, rather than by using certified shorthand reporters or expressly mandating

that the official superior court record be made by shorthand reporters (Id. at 26, 51). Nevertheless,

the Court of Appeal reviewed the applicable provisions of statute and determined that the proposed

rules were invalid because Code of Civil Procedure "section 269 requires that the official reporter

make the record of superior court proceedings, if requested by a party or by the court" (Id. at 30,

54; see also, CCRA II, 59 CalApp4th at 961, 69 CalRptr2d at 529). [*12]

The fact that the Legislature has by statute authorized electronic recording in some

contexts suggests strongly that — unless the existing statutory scheme providing for

the official record to be taken down in shorthand is amended — the Legislature does

not intend that electronic recording of superior court proceedings be the method of

creating an official record. Although the statutes do not expressly prohibit electronic

recording of superior court proceedings, they nevertheless lead to one conclusion —

that the Legislature intended that such proceedings be stenographically recorded by

official shorthand reporters (CCRA I, 39 CalApp4th at 31, 46 CalRptr2d at 55),

and as "the Legislature has not authorized the creation of an official superior court record by

electronic means under any circumstances" (CCRA II, 59 CalApp4th at 964, 69 CalRptr2d at

531), the Judicial Council's rules were impermissible as they "were inconsistent with statute and thus

were promulgated in excess of the Judicial Council's statutory authority" (Id. at 962, 530).

The legislative authorization permitting limited electronic recording in New York expired

on June 30, 1999 when Judiciary Law §290-a was deemed repealed. The Judiciary Law could not

be more clear. The statute directs in unmistakable language that each official stenographer "must

take full stenographic notes of the testimony and of all other proceedings in each cause tried or

heard"and "complete stenographic notes of each ruling or decision of the presiding judge" (Judiciary

Law §295; see, Paffen v. City of New York, 176 AD 423, 424 [1917]).

When court administrators sought to implement temporary measures allowing for the

electronic recording of court proceedings in derogation of Judiciary Law §295, authorization was

obtained by means of legislation in 1992 and 1995. The authority granted by the Legislature has long

since expired, yet the electronic recording of proceedings in some courts of record continues

unabated and beyond what the Legislature had authorized by the enactment of Judiciary Law §290- [*13]

a.^[FN7]

Whether the continued electronic recording of proceedings in the courts of record is

authorized is not an issue which this Court must decide as a court reporter was able to be

obtained to continue the trial in this case. However, this Court writes to express its opinion that

the current practice of employing electronic recording to make the official record in courts of record

appears to lack any legislative sanction and indeed, it is contrary to what Judiciary Law §295

mandates.

The present electronic recording of court proceedings is also completely unregulated

as there is no court rule (valid or not) governing electronic recording of proceedings conducted

before judges and justices in courts of record. Electronic recording is being conducted in a haphazard

manner by distracted judges and court personnel having other duties in the courtroom, often

producing unintended results such as unintelligible records of trial proceedings (see, Matter of

Jordal v. Jordal, 193 AD2d 1102 [1993] Matter of Cree v. Terrance, 55 AD3d 964, 965 [2008], lv

denied 11 NY3d 714 [2008] Matter of Savage v. Cota, 66 AD3d 1491, 1492 [2009] Matter of

Devre S., 74 AD3d 1848,1849 [2010] Matter of Garner v. Garner, 88 AD3d 708, 709 [2011]

Matter of Chu Man Woo v. Qiong Yun Xi, 100 AD3d 883, 884 [2012] Rogers v. Avgush, 17 Misc 3d [*14]

135A, 2007 NY Slip Op 52266U [App Term]).

Given the important, emotion-laden, and often time-sensitive proceedings which come

before the Family Court, and the financial constraints which are a reality for many litigants, both

private and governmental, the state should endeavor to meet its obligation to accurately record

Family Court proceedings by providing sufficient official court reporters or by obtaining legislative

authority to record court proceedings electronically and by providing trained personnel to operate

the electronic recording system. The children, parents, and others having their rights adjudicated by

the Family Court are entitled to nothing less.