You would think that it is a silly question. Of course, there shouldn't be any such difference - a stenographic transcript is a stenographic transcript.
Yet, Judge Keene's court attorney, of Tioga County, asserts that there is a difference between the two.
Here is a letter sent to me by Judge Keene's attorney on July 31, 2015.
The letter is clearly accusing me of neglecting a client by failing to file an "affidavit of errors" in a case where the court claims no stenographic record was made (while admitting that a stenographic transcript was filed with the court and omitting the fact that a motion to settle that transcript timely made by me is pending in the lower court since March of 2012, for 3 years).
Yet, it appears that the court is trying to shift to me neglect and misconduct of their duties not by one, but by several judges participating in this case on the trial, motion and appellate level.
The case involving a jury trial for a sexual offense resulted in a conviction.
An appeal was timely filed.
Since the defendant was indigent, an assigned counsel (myself) was promptly assigned.
As soon as I was assigned, I requested transcripts of all proceedings, such as pre-trial arraignments, hearings, the trial and sentencing.
When transcripts were provided and I had an opportunity to review them, I put in front of the trial court a motion to settle the transcripts supported by an affirmation (which in New York is an equivalent of an affidavit) pointing out gaps in the transcripts making proper appellate review impossible for the lack of proper record.
Since the case is a high-profile sex offense case upon which several other derivative adjudications are based, the court system which supposed to be a neutral reviewer, resisted the appeal from progressing.
The first judge presiding over the appeal, Judge Carl F. Becker, assigned me to the appeal - the only case Judge Becker has ever assigned me to, and assigned me, conspicuously, after I sued him in state and federal court (both lawsuits were dismissed without reaching the merits or having discovery on the basis of absolute judicial immunity for malicious and corrupt acts on the bench).
At the time Judge Becker assigned me to the case, Judge Stephen Rose of Sidney Village Court, a non-attorney and a former police officer, called me directly to my home office, verified when I will NOT be at home, came to my home at that time, demanded that my husband (at that time a disbarred attorney) should accept delivery by Judge Rose of transcripts in this case, had my husband signed for acceptance of the delivery, and then turned around and complained to the Professional Conduct Committee that my husband is engaged in unauthorized practice of law and I am condoning such practice.
Knowing unethical and corrupt practices of Judge Becker, I have a reason to believe that the only reason Becker assigned this single case to me was because he had an agreement with Judge Rose to use the case to entrap me and my husband into charges of unauthorized practice of law and aiding and abetting the same.
The entrapment did not work the way it was supposed to.
Neither Judge Becker nor Judge Rose are outstanding legal scholars, and neither one of them took into account the law of the State of New York providing that, when an attorney is served with anything at her home, she can be served, by substituted service, upon a person of "suitable age and discretion", and the choice of the person of a suitable age and discretion is with the person serving the papers.
The person serving the papers was Judge Rose (which was a clear "irregularity", but that's what Judge Rose chose to do).
So, Judge Rose came to my home knowing, through prior verification, that I will not be there at the time he comes, chose my husband as a person of "suitable age and discretion" to accept service of papers for me, had my husband sign for acceptance of such service, and then turned around and complained that the perfectly lawful act by a person who does not have to be an attorney and which does not constitute the practice of law, is practice of law on behalf of Mr. Neroni and condoning of the same by me.
I made a motion to recuse Judge Rose and filed a federal lawsuit on behalf of my husband.
Judge Rose recused.
The federal lawsuit on behalf of my husband, Neroni v Zayas, was initially decided (partially) in his favor when Judge Lawrence E. Kahn of the U.S. District Court for the Northern District of New York ruled that the case should not be dismissed and should proceed to trial on the issue whether a disbarred attorney may be investigated and prosecuted by an attorney for Professional Conduct Committee any further, or whether a disbarred attorney so investigated may sue for money damages.
After Lawrence E. Kahn, upon information and belief, got some benefits from high-standing attorneys who had material interests against my husband, through the means of the so-called American Inns of Court, Lawrence E. Kahn backtracked on his decision and dismissed the case, on the grounds of absolute judicial immunity of members of the Professional Conduct Committee for malicious and corrupt acts.
Back to People v. Simmons, subject of the letter of the Tioga County judge's attorney who did not mention in her letter that the case is pending on appeal in Delaware County Court.
The motion to settle the transcript was made on March 5, 2012 to the proper lower court.
Judge Becker, as the appellate judge, held a conference in the case, with the special prosecutor James Hartmann and myself as the appellate attorney for the defendant, present.
Judge Becker accepted that the motion to settle the transcript was proper and transferred its review to another court.
Usually, motions must be reviewed, and decision on them made, within 60 days of the returnable date.
More than 3 years passed since I made the motion. The initial returnable date was March 20, 2012.
When the courts woke up and figured that the lower court forgot to make a decision on the motion, they started to blame me.
In the letter by court attorney of currently assigned to the appeal Judge Gerald Keene of Tioga County, the court attorney for the judge claims that because the proceedings at trial and sentencing were not recorded by a court stenographer, I had to file an "affidavit of errors", and if I did not file the same, the appeal should be dismissed.
The court attorney, at the same time, admits in her letter that a transcript (while omitting the word "stenographic" transcript) of the trial and sentencing was provided to the appellate court, making the section of the law she is quoting inapplicable, since it is a distinction without a difference whether the stenographer was actually present in court to create a record that she later transcribed, or whether she transcribed a record from an audio recording of proceedings made by the court. If anything, transcript from an audio recording may be more precise than transcript from the coding and decoding by the stenographer. In any event, the resulting transcript is a stenographic transcript filed with the court, and CPL 460.10(3) does not apply. It would apply if no record would be taken at all.
It is telling that the court attorney does not mention in her letter the conference before Judge Becker, approval by Judge Becker of my motion to settle, directions by Judge Becker and by two subsequently assigned appellate judges to the lower court to review and resolve the motion to settle.
Here is my motion to settle made on March 5, 2012, provided here without exhibits that were filed with the court.
It is clear that I made a supporting Affirmation for the motion which, if the court wants to nit-pick and insist that electronic audio-recording made by the court and turned over for a stenographer to create a stenographic transcript is not the same as the stenographer actually sitting in court and providing the transcript from her recordings, and not from the audio, can be clearly regarded as an "affidavit of errors".
Why are several judges, including Judge Keene, so keen on preventing the appeal from happening?
Because, given the gaps in the record, the reversal in this case is a must.
And, with the reversal, the following things may happen:
1) a sex offender registration of the defendant will be expunged;
2) a new trial will have to be held where previously intimidated witnesses may come forward and testify properly;
3) if the defendant wins, the Delaware County Department of Social Services, the "child" of Judge Becker and of the current judicial candidate Porter Kirkwood, will look very pale, to put it mildly;
4) a federal lawsuit by the defendant may follow against participants in malicious prosecution against defendant which cost him dearly in terms of a served jail sentence, reputation, job and liberty restrictions and irremedeemable financial and emotional losses.
For that reason, it is easier to pound on an assigned counsel who was assigned for the reason of being entrapped into a criminal prosecution for aiding and abetting in unauthorized practice of law, and instead she did her job and staunchly fought for her client (which is unusual for assigned appeals).
Here is the notice of motion to settle the transcript, vacate the conviction and recuse Judge Rose with a supporting affirmation, made on March 5, 2012 and still unresolved.
Which brings me to a question - how can a court that aggressively and vigorously acts as an advocate for the prosecution, for years, through a number of different judges, be a neutral adjudicator on appeal?
I do not usually blog about a pending criminal appeal.
In this case though, I considered it imperative to do that to protect my client's interests since I have a feeling that the assigned judge of the Delaware County Court, the appellate court, seeks ways of how to make the appeal disappear instead of doing his job - because of the embarrassment to so many people, including many judges and one retired judge, that is involved in a reversal that is a must in this case, based on how bad it was handled and how selective the record was, to the prejudice of the criminal defendant.