
    The People of the State of New York, Appellant, v Robert Feldes, Respondent.
    Submitted May 2, 1989;
    decided June 13, 1989
    
      POINTS OF COUNSEL
    
      Stephen F. Lungen, District Attorney (Bonnie M. Mitzner of counsel), for appellant.
    I. Respondent’s conviction should be reinstated and the appeal perfected. (People v Greenbaum, 104 Misc 2d 1012.) II. The County Court erred in reversing respondent’s conviction. (People v Greenbaum, 104 Misc 2d 1012; People v Hinkley, 121 Misc 2d 990.)
    
      Emanuel Gellman for respondent.
    The County Court properly reversed respondent’s conviction. (People v Greenbaum, 104 Misc 2d 1012; People v Rokahr, 141 Misc 2d 117.)
   OPINION OF THE COURT

Per Curiam.

The issue presented by this appeal arises from a gap in the statutory scheme for appeals from local criminal court judgments when the proceedings have not been stenographically recorded. In such a case, the defendant files a notice of appeal, accompanied or followed by an affidavit of errors that sets forth the defendant’s allegations concerning the errors in the local court proceeding (CPL 460.10 [3] [a]). In theory, the local court then responds by filing within 10 days a return with the appellate court to which the appeal has been taken; the return sets forth or summarizes the facts relevant to the defendant’s claims (CPL 460.10 [3] [d]). In addition, should the local court fail to timely file a return or file one that is defective in some respect, provision is made for the defendant to move the appellate court for an order directing the lower court to file or amend its return (CPL 460.10 [3] [e]). Absent from the Criminal Procedure Law, however, is any provision for what is to be done should the local court fail to respond to this order. That is the bone of contention between the parties here.

Prior to trial in Town Justice Court, defendant unsuccessfully sought, over the People’s objection, to have the proceedings recorded. Following his trial, defendant was convicted of third degree assault. Defense counsel properly served a notice of appeal and an affidavit of errors. The Town Justice who had tried defendant meanwhile retired, and a return on defendant’s affidavit was made by his successor. The return was filed with the County Clerk’s office, but neither defendant nor the People were served with copies, although the statute requires that to be done (CPL 460.10 [3] [d]). Defendant, unaware that a return existed, moved for an order directing the filing of a return or for dismissal, and the County Court directed the Justice Court to file a return. No response was made.

Defendant then sought dismissal of the charges against him, for failure of the local court to satisfy the requirements of CPL 460.10 (3) (d). In his affirmation in support of the motion, defense counsel noted that he had by then examined the return filed with the County Clerk, but that in his view it was unresponsive to the errors alleged by defendant and therefore defective. The People opposed defendant’s motion for dismissal on the sole ground that CPL 460.10 did not provide for dismissal when no return had been filed. They argued that the appropriate remedy would be to direct an order specifically to the now-retired Town Justice who had tried the case to file a return, on pain of contempt. Neither party, in County Court or before us, in any way relied on the return that had been filed with the County Clerk’s office as compliance with the statutory mandate.

County Court held that "when a justice court fails to file a return, the allegations set forth in the affidavit of errors will be deemed admitted and the intermediate appellate court may decide the appeal on the merits as set forth in the affidavit of errors alone.” Following that procedure, County Court reversed defendant’s conviction and remanded the matter to Justice Court for further proceedings. We now affirm.

The People’s central contention on this appeal, is that County Court acted outside its power, because the Criminal Procedure Law does not authorize the course followed. Specifically, the People contend that it was an abuse of discretion to deem the allegations admitted before issuing yet another order informing the lower court of the consequences of continued failure to file a return (see, People v Hinkley, 121 Misc 2d 990; People v Greenbaum, 104 Misc 2d 1012).

We cannot accept the People’s theory that County Court was required to give the Town Justice warning that failure to comply with an order to file a return would result in admission of defendant’s allegations. The Criminal Procedure Law requires that a return be filed within 10 days of service of an affidavit of errors; it then provides for an order to issue in the instance — which should be rare — where the local court does not comply with its statutory obligation. That is sufficient. It is not incumbent upon an appellate court absent unusual circumstances not present here, to provide a further opportunity for the town trial court to fulfill its duty especially when the prosecutor has done nothing to advance the appeal. Whoever was at fault, it certainly was not the defendant, and he should not suffer because of this inaction on the part of State officials.

In the circumstances, we conclude that it was not an abuse of discretion for County Court to deem defendant’s allegations of error admitted. Having unsuccessfully sought to have the proceedings recorded, and then by two motions to secure compliance with the Criminal Procedure Law, defendant could have done nothing more to advance his appeal (contrast, People v Greenbaum, supra). In the absence of any statutory direction, County Court acted within its discretion in fashioning the remedy of deeming the allegations of error admitted. While generally a hearing should be provided, at which the People might present their legal arguments, here that step was unnecessary and the People did not seek that relief. Once defendant’s allegations were deemed admitted, reversal of the conviction and remand to the Town Justice Court followed because, as the lower court observed, on this record the admitted trial court errors could in no event have been deemed harmless.

Accordingly, the order of the County Court should be affirmed.

Kaye, J.

(dissenting). While County Court of course can fill the statutory gap by fashioning an appropriate remedy for failure to file a return on an affidavit of errors, here it abused its discretion by summarily overturning a conviction without first reviewing the return that had actually been filed, and without giving the People a chance to be heard. We respectfully dissent.

Defendant’s affidavit of errors, filed February 29, 1988, was in many respects so general and vague as virtually to defy response. Nonetheless, a return was filed on March 9, 1988, consisting of a certificate of conviction, the accusatory instrument, the Trial Justice’s lengthy handwritten notes of the trial testimony, and his decision. Notably, although the return was not properly served on defendant, by the end of June 1988 defendant was in fact fully aware of it. Indeed, defendant alluded to it in his second motion to dismiss and consequently, County Court was or should have been aware of its existence; the return was part of the court file and is part of the record on this appeal. To the extent response to defendant’s affidavit of errors was possible, the return was arguably responsive to defendant’s affidavit of errors despite his contrary claim.

In these circumstances, County Court should not have reversed defendant’s conviction without first examining the return to determine the merits of defendant’s claim that it was unresponsive to his allegations. As we have stated in a comparable situation not involving a Justice Court, it is only upon a showing that an adequate record for review is not available that a defendant is entitled to automatic reversal (People v Glass, 43 NY2d 283, 285). Here, defendant’s own motion papers disclosed the existence of a record; the showing required for automatic reversal was plainly not made. Moreover, contrary to the contention of the majority, it was not the obligation of the prosecutor to "advance” the defendant’s appeal (majority opn, at 664); it is for the defendant to demonstrate that the available record is inadequate. There is no basis for deviating from these principles, and imposing on the People the duty to secure the court’s performance because the Justice Court and not some other court is involved.

We further agree with the People that County Court should not have summarily reversed the conviction without giving the People a chance to be heard, and without then determining that the alleged errors required reversal. CPL 460.70 (2), the statute governing perfection of appeals from local criminal courts when the proceedings have not been transcribed, requires the defendant to file a notice of argument, and serve a copy on the People. While in this case it may well have been true that once the allegations of defendant’s affidavit were deemed admitted reversal was inevitable, the People still were entitled to make such legal arguments in opposition as they could muster, and it was error to deny them that opportunity.

The course chosen by County Court — automatically overturning a conviction — was wholly unwarranted.

Chief Judge Wachtler and Judges Titone, Hancock, Jr., and Bellacosa concur in Per Curiam opinion; Judge Kaye dissents and votes to reverse in a separate opinion in which Judges Simons and Alexander concur.

Order affirmed.  