"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Tuesday, July 26, 2016

New York Court of Appeals has disgraced itself with the decision claiming that transcripts from electronic recordings of courts "not of record" do not constitute full court record for purposes of appeal

In United States, and in the State of New York, there is a distinction between courts "of record" and "not of record".

Courts "not of record" are courts where record is not officially kept by a court stenographer.

It is reported that in some states of the United States, courts not "of record" do not have the power to fine or imprison litigants - specifically because, in the absence of record kept by the court, defendants' constitutional right to appeal does not exist.

Yet, many courts in New York that hold the power to fine and/or imprison litigants are not courts of record, such as:

  1. local justice courts - that has the power to:
    1. impose fines for violations and misdemeanors;
    2. imprison criminal defendants for up to 1 year on a single misdemeanor count - more than 1 year for more than 1 misdemeanor count, and
    3. to detain a felony defendant pending the action of the Grand Jury;
  2. Family Courts - imposing fines and sending litigants to jail for civil contempt of court.

Both justice courts and Family Courts in New York do not employ stenographers to record court proceedings.

Judges in justice courts do not have to be attorneys and do not have to have any formal education whatsoever.

Judges in Family Courts have to be attorneys, with a minimum of 10 years of experience to run for that judicial seat.

Both courts "not of record" use the alternative system of creating a record though - audio recording, which is often MORE dependable that transcripts created by court reporters.

Actually, court reporters themselves use software that creates a parallel audio recording form which the court reporters create transcripts - yet, in two states so far, Georgia and Louisiana, legal proceedings were commenced to get access to those audio files, to be able to prove that transcripts differed from the original audio recordings.

In Louisiana the proceedings resulted in suspension of the attorney seeking such inormation, Christine Mire.

In Georgia, proceedings were dismissed by judges who were covering up their own misconduct, and criminal proceedings were commenced against both the attorney and the attorney's client, a publisher, seeking such information.

In New York, recordings of a court proceeding are actually prohibited by Civil Rights Law 52, making it a crime to so record, and my federal lawsuits to declare Civil Rights Law 52 unconstitutional, resulted in dismissals "for frivolous conduct" with sanctions against me and my client on whose behalf I was raising that issue.

Therefore, the use of audio-recording software by stenographers, and by judges in Family and justice courts allowing, without a separate court order, per each proceeding, to audio record court proceedings, is arguably a violation of criminal law, Civil Rights Law Section 52 (the statute prohibits "televising, broadcasting or taking motion pictures of court proceedings").

Yet, the use of audio and/or video recording is the most reliable way so far of creating a court record.  One can rely upon an audio recorder to create a true record, as compared to transcripts of stenographers who can cook transcripts to cover up misconduct of a judge, and, at the very least, if the audio file is cooked, as it was done in Louisiana to cover up misconduct of judge Phyllis Keaty, the fabrication is ascertainable by tangible technical means.

I wrote recently about fabrications of transcripts that I know of, from the Internet or from personal experience.

None of the stenographers involved were disciplined as far as I know, and all of the stenographers involved continue to be employed by the respective court systems.

Moreover, I wrote on this blog about stenographers being Facebook friends of a judge's law clerk.  While the law clerk in question hid her Facebook friend list after I ran the blog, the fact that a situation exists where stenographers are friends of the judge or the judge's law clerk, strips record of proceedings from presumption of authenticity, especially where the issue of judge's misconduct or bias are raised on appeal and where the record is created specifically to provide an opportunity for an appeal.

The situation where the supposedly neutral stenographer satisfies the presiding judge's or referee's whim to fabricate the record runs throughout courts and states - here I reported documented cases from New York, Louisiana and Georgia.

Recently, New York State Court of Appeals made a mockery of criminal defendants' right to appeal, playing up the technical requirements of a statute pertaining to appeals from justice courts as not "courts of record".

In People v Smith, the NYS Court of Appeals has ruled in June of 2016 that the requirement of filing an "affidavit of errors" after a conviction in a justice court (court "not of record") is not a waivable technicality, but is a jurisdictional requirement, which is not overcome even by filing of the actual transcript of the record actually made from the audio file.

People v Smith affected many appeals of criminal convictions and civil judgments pending from justice courts, but did not receive much coverage in the legal press.

Let's go once again over this triumph of formality over common sense, fairness, due process and criminal defendants' right to access to court on appeal.

A court "not of record" is a court where record of proceedings is not kept.

If record of a proceeding, especially of a criminal proceeding, is not kept, such a proceeding lacks constitutionality and, in many states, such a court may not impose fines or send a person to jail without such a record.

To CORRECT that CONSTITUTIONAL PROBLEM, which was not corrected by the New York State Legislature in Criminal Procedure 460.10 requiring a criminal defendant to file an "affidavit of errors" when appealing from a criminal proceeding.

Imagine a pro se defendant or his attorney being charged not only with doing their job at the arraingment, motions, conferences and trial, but also REMEMBERING all the errors made by the judge in order to then preserve those errors in the affidavit of errors for purposes of the appeal.

Imagine that the appealing attorney is different from the trial attorney - happens all the time, many attorneys specialize in trial work vs appellate work, and do not do both.

Imagine that the defendant who was present at the trial is not trained in the law (as it usually happens) and/or does not possess of a photographic memory to remember all errors made by the court.

Imagine also that the NYS Court Administration requires judges of justice courts, by an administrative court rule, to create audio recordings of court proceedings.

In practice it looks like that - a judge of a justice court has a laptop with recording software which the judge must turn on when any court proceeding starts, and that would include any and all proceedings, such as arraignments, calendar calls, conferences, motion hearings, pre-trial hearings, trials, sentencing hearings and violation of probation hearings - as well as all hearings in civil proceedings handled by justice courts.

Once again,

  • a court rule - but not a statute - exists requiring judges to create an audio recording of court proceedings; 
  • the statute, CPL 460.10, only requires an "affidavit of errors" for purposes of filing a Notice of Appeal and is clearly unconstitutional because it allows courts "not of record" to handle criminal proceedings that result in incarceration up to 1 year PER COUNT of criminal charges - so that if there are many counts to run consecutively at sentencing, a person can be sentenced by a judge without an ascertainable education or training, and by a court without a record, to MANY YEARS of jail time;
  • judges of justice courts are disciplined as for judicial misconduct for NOT recording proceedings - as it recently happened to the Delhi Town Justice Richard Gumo.

And, as it was recently held in my case by the Appellate Division 3rd Department - and my constituitonal appeal dismissed by the New York State Court of Appeals - a clear and unambiguous wording of the statute which 3 intermediate jurisdictions out of 3 in the state of New York regard as jurisdictional, may be disregarded "as a mere irregularity".  I will run a separate blog about that legal wonder.

Yet, while violation of one jurisdictional statute, CPLR 2103 (service of process by a party in the proceeding) was held as a "mere irregularity", and the New York State Court of Appeals agreed, dismissing my constitutional appeal made on equal protection, due process and access to court grounds because,

  • had I filed my lawsuit in the 1st, 2nd or 4th Departments, I would have won - by default, but since I
  •  filed in the 3rd Department, I lost -
    • with sanctions for frivolous conduct,
    •  attorney fees (a total of over $10,000),
    • an anti-filing injunction and
    • a threat of criminal contempt proceedings allowed to be filed against me, should I dare to sue that party again (who is, coincidentally, a part-time judge) without permission of court, and
    • the criminal contempt proceedings were allowed to be filed against me not through the grand jury proceedings, as is required for criminal proceedings in Supreme Court in teh State of New York, but through a mere motion to be filed by a private party.  And, the 3rd Department did not see any constitutional problems about that, as well as the New York State Court of Appeals.

My jurisdictional statement to the New York State Court of Appeals fully describing the split between the 1st, 2nd and 4th Departments, on one side, and the 3rd Department, on the other side, is available here.

On June 20, 2016, the New York State Court of Appeals rejected jurisdiction over my constitutional appeal as of right regarding the split claiming that there is no "substantial constitutional question involved".

So, when 3 appellate courts read a statute one way and would have granted me the victory in a lawsuit, and 1 appellate court read the same statute as unnecessary to follow - and punish me as a result - that is not a discrepancy of constitutional proportions in the eyes of the New York State Court of Appeals.  As I said, I will dedicate another blog to this continued split and continued problem, where the New York State Court of Appeals sacrificed rights of all litigants in the 3rd Department only to be able to hurt me, for criticizing the Chief Judge Janet DiFiore for corruption (you can run "Janet DiFiore" in the search window on the right to see my blogs about her).

While the Legislature created clear and unambiguous statutes, and while all the Legislators and all judges are sworn to uphold the U.S. and the New York State Constitutions as their primary duty, the Legislators issue statutes which are facially unconstitutional - such as allowing:

1) justice courts and
2) Family Courts

to be

  • "not courts of record", while
  • being allowed to
    • impose fines,
    • send people to jail, and
    • infringe on constitutional parental rights, including taking away children, for periods of time, or for good.

Yet, let's look at the mess created by the Legislature as to appeals from one type of the "court not of record" - the justice courts - as compared to the other court "not of record", the Family Court.

Both of these courts are courts "not of record".

Which means that, in both of these courts, stenographers are not present at the proceedings, and thus, official record is not taken.

In both of these courts, by court rules, audio recording of proceedings is required.

In both of these courts, transcripts of such proceedings are obtained, in the case of assigned counsel, at taxpayer expense.

Yet, when the appeal is taken from Family Court, no "affidavit of errors" is required to be filed, as a PRE-CONDITION of appeal proceeding, and in justice courts, in the case of criminal convictions, with more far-reaching consequences, an appeal is rejected if the affidavit of errors (memorializing errors of the court over lengthy and multiple hearings that the defendant or his attorney might not be physically able to remember) is not filed, even if the transcript of the ACTUAL RECORD, made from the ACTUAL AUDIO RECORDING IS FILED.

This is a triumph of stupidity, ladies and gentlemen, and this is what happens when you put a prosecutor who was caught, multiple times, in misconduct and corruption, such as Janet DiFiore, as the head judge of the State Court.

People v Smith decided on June 23, 2016, and Neroni v Follender, decided on June 20, 2016, created a conceptual mess as to appeals from "courts not of record", and as to statutory interpretation.

People v Smith raises big questions as to statutory interpretation, separately, and constitutionality of state statutes governing authority and jurisdiction of courts "not of record" in the State of New York, separately:

1) what is the scope of judicial "discretion" in interpreting clear and unambiguous statutes?  Why not following the clear and unambiguous language of CPLR 2103 (a party may not serve process in its own proceedings) is considered a "mere irregularity" by 1/4 of appellate courts - and the New York State Court of Appeals agrees with the 1/4, without an explanation, while the same New York State Court of Appeals insists on asserting that violating of a completely non-sensical requirement of CPL 460.10 to file an "affidavit of errors" - even if a BETTER record, a transcript of the audio recording - is available, is a jurisdictional bar for a criminal appeal?

2) Was Neroni v Follender, agreeing without an opinion, with the 3rd Department's interpretation of violation of CPLR 2103 as a mere irregularity - while three other Departments consider the same as a jurisdicitonal defect - overruled by People v Smith within three days of Neroni v Follender, by holding that where the language of the statute is "plain", violation of that statute is a jurisdictional defect and not a "mere irregularity"

3) Now that the New York State Court of Appeals has ruled that transcripts created from audio recordings by the transcriber who was not present at the actual court proceedings, do not constitute the full stenographic record of proceedings, and a "court return" is required in response to appellant's required "affidavit of errors" - what does it do to appeals from Family Courts?

If a similar procedure is not required in Family Court - and it is not now - appellants from justice courts may claim violation of equal protection in procedures set in two "courts not of record", in accordance with People v Smith - where in justice courts electronic recording and further transcription of such recording is not considered enough of a record to even allow an appeal, and in Family Court the same is considered enough of a record.

The situation is aggravated by the fact that

  1. expecting the criminal defendant or his attorney to do a better job with an affidavit of errors than an audio recording of lengthy, often multi-date appearances and hearings, non-sensical;
  2. putting upon an appellate attorney (if he or she did not try the case) the obligation to "pick the memory" of the trial attorney or defendant puts a non-sensical and insurmountable burden upon all individuals involved; and
  3. expecting a court where judges are not required to be lawyers or to have any ascertainable degree of education to create a better "return" and "court record" than an audio recording or a stenographer can do - as compared to not requiring Family Court judges, attorneys with a minimum of 19 years of education (school K-12, college - a 4 year degree, law school - 3 years) and a minimum of 10 years of experience as attorneys, to create such "return" or "record" in the same situation where the court is not a court of record, and where the only recording done is electronic recording not provided for in the jurisdicitonal statute.

So, more is required from judges who are allowed to be completely illiterate than from judges who are attorneys with 19 years of school, college and graduate education and 10 years of experience.

That is a due process, equal protection and access to court problem that appellants from New York justice courts can readily challenge in federal courts after People v Smith.

Moreover, if New York State Court of Appeals insists that the electronic record created in local justice courts - and in other courts of record - is not an equivalent of the actual court record, then the court's obligation was to actually appear proceedings in such courts invalid as unconstitutional, because a person may not be deprived of liberty or property without due process of law, and where the court is "not of record", and the transcript from this court does not constitute an "equivalent of court record", such courts should not be allowed to handle proceedings involving people's constitutional rights.

Otherwise - who does one ascertain that the courts are doing their jobs and are not violating those constitutional rights.

New York State Court of Appeals, by its decision in People v Smith, also undermined the so-called "domestic relations deference", a pretext used by federal courts to dismiss civil rights cases arising out of Family Courts with a claim that "traditionally" domestic issues can be handled by Family Courts just fine.

Well, not so fast - because, as the highest court of the State of New York just ruled in People v Smith on June 23, 2016, transcripts of such proceedings do not constitute proper record of such proceedings because the transcript is not made by a person present at the proceedings:

If transcripts of a court "not of record" are not real records of court proceedings of those "courts not of record"  - incuding the Family Court - how can the federal court be sure that Family Courts can handle constitutional issues in such proceedings "just fine"?

Especially where judges of Family Court, in their "discretion", claim that raising constitutional arguments in "their courts" is (1) frivolous (Carl Becker's sanctions against me resulting in suspension of my law license) and (2) constitutes "lying" (judge Frank B. Revoir Jr.'s statements on record which New York State Commission for Judicial Conduct refused to take up for discipline against Judge Revoir).

One thing is clear - when incompetent, corrupt and partisan judges are handling issues of constitutional importance without actually properly reading what is in the record - we have the mess created by People v Smith.

A summary:

the New York State Court of Appeals declared that:

1) violation of a plain statute is a mere irregularity - by agreeing with the 3rd Department in Neroni v Follender on June 20, 2016 (interpretation of violation of CPLR 2103 as a "mere irregularity" rather than a jurisdictional defect - as interpreted by the 1st, 2nd and 4th Department);  that

2) violation of a plain statute is a jurisdictional defect - in People v Smith as to CPL 460.10 requiring the filing of an "affidavit of errors" in an expectation of a "court return" created by an illiterate non-attorney judge, which somehow is a court record more authentic and of better quality than the filed transcript from the audio recording of the same court proceedings;  and that

3) transcripts from audio recordings from court proceedings of courts "not of record" (in New York, such courts are justice courts AND Family Courts) are not "true records" of such court proceedings.

I will report on any constitutional challenges filed in connection with the non-sensical decision in People v Smith, which is clearly a result-oriented case aimed at cutting off the ability of criminal defendants to challenge incompetence and misconduct of illiterate judges in New York justice courts, but inadvertently upended ALL rulings in New York Family Courts.

Stay tuned.


  1. It’s a question of law, but not one of statutory construction. I had hoped that the guidelines articulated in Justice Kagan’s concurrence in Heien would limit the damage done by the majority opinion, but it looks like those go out the window where the mistake of law doesn’t involve the interpretation of text.

    I wonder if these mistakes of law will turn out to be “exceedingly rare”.

  2. It is a question not simply of law, but of constitutional rights not to be convicted and sent to jail by a court which does not even take a reliable record of what it is doing, not to mention that judges of that court do not have to have legal education or any level of formal education at all, even Kindergarten. Apparently, according to the NYS Court of Appeals decision, audio record required by the NYS Office of Court Administration's own rules is not reliable and instead an affidavit based on memory. Now, whose memory that is? Defendant's if appellate counsel is not the same as trial counsel, Or, if it appellate counsel is the same as trial counsel, the trial counsel must now memorize the record better than the audiotape? The decision is a caveman/woman's decision putting affidavits from memory over the reliability of the court's own audiorecording. Courts not of record, after this decision, are confirmed by the highest state court as simply unconstitutional, not that New York courts care about such trifles.

    Btw, guidelines articulated in a concurrence never limit anything, a concurrence does not have precedential value unless the majority if judges of the court concur on that particular issue. Moreover, courts repeatedly feel free to ignore even precedential majority opinions when it suited their pre-judged plan - deny a motion or an appeal in a certain case (criminal, family court, defense of foreclosure, civil rights).