People v. Robinson

530 N.E.2d 1287, 72 N.Y.2d 989, 534 N.Y.S.2d 367, 1988 N.Y. LEXIS 2694

• Court: New York Court of Appeals
• Decided: October 18, 1988
• Status: Published

Opinion

OPINION OF THE COURT

Memorandum.

The order of the County Court should be affirmed.

On this appeal from a judgment convicting defendant of violating the terms and conditions of his probation, defendant contends that the proceedings in the intermediate appellate coúrt were flawed because of the trial court’s failure to file a return as required by CPL 460.10 (3) (d).

* This contention is meritless.

CPL 460.10 (3) (d) provides that "[t]he court’s return must set forth or summarize evidence, facts or occurrences in or adduced at the proceedings resulting in the judgment, sentence or order, which constitute the factual foundation for the contentions alleged in the affidavit of errors.” In defendant’s case, this requirement was satisfied by the transcript of an electronic recording of defendant’s probation revocation hearing, which was filed with the County Court as part of the record on appeal. We note that there is no claim here that the "affidavit of errors” includes contentions that cannot be resolved by reference to the transcript. Further, defendant does not contend that the transcript is in any way incomplete or inaccurate (cf, CPL 460.10 [3] [e] [remedy for defective return is an order directing lower court to file amended return]).

We have examined defendant’s remaining contentions and found them to be either unpreserved or without merit.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed in a memorandum.

CPL 460.10 (3) governs the manner in which an appeal as of right may be taken to an intermediate appellate court "in a case in which the underlying proceedings were not recorded by a court stenographer”. Under paragraph (a), the appellant may file either a notice of appeal or an affidavit of errors. If the latter course is elected, the local criminal court from which the appeal is taken "must file with the clerk of the [intermediate] appellate court to which the appeal has been taken both the affidavit of errors and the court’s return” (CPL 460.10 [3] [d]).