Matter of Shannel P., D-21117/13
Cite as: Matter of Shannel P., D-21117/13, NYLJ 1202642854680, at *1 (Fam., QU)
Judge John Hunt
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
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 the proceedings (see, Fam. Ct. Act §341.2 , ; Matter of Edwin N., 51 AD3d 928, 928-929 , lv denied 11 NY3d 705 ).
A Wade hearing involving the testimony of a peace officer employed by the ASPCA (Criminal Procedure Law §2.10 ) 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 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 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 ; City of New York v. Maul, 14 NY3d 499, 507 ; People ex rel. McManus v. Horn, 18 NY3d 660, 664 ; Matter of Brianna L., 103 AD3d 181, 186 ).
The Family Court is a "court of record" (NY Const, art VI, §1 [b]; Judiciary Law §2 ),2 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 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 , app dismissed 4 NY2d 872
; Bogart v. Bogart, 13 AD2d 826 ).3
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 ; People v. Hull, 13 Misc2d 969, 970 ), 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 , lv denied 99 NY2d 503 ).4
Enacted in 1909 (Laws of 1909, ch 35), Judiciary Law §295 directs that:
Each stenographer specified in this chapter…must take full stenographic notes of the testimony and of all other proceedings in each cause tried or heard. Such stenographer shall take complete stenographic notes of each ruling or decision of 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 or on behalf of any party to the action."
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 ; see also, People v. Koufomichalis, 2 AD3d 987, 989 , lv denied 2 NY3d 742 ). 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 ; People v. Faulkner, 36 AD3d 1071, 1072 ).
A "verbatim" record of judicial or administrative proceedings includes "a transcript of any testimony taken" (Matter of Collins v. Hammock, 96 AD2d 733, 734 ), and it must accurately state what was said (Matter of Smith v. Gwydir, 86 AD2d 673, 674 ). 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 ; People v. Henry, 167 Misc2d 1027, 1030 ), that duty does not 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 , aff'd 82 NY2d 768, 769 ; 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.).
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:
1. Notwithstanding any other provision of law, the chief administrator of the courts may authorize on a trial basis, the use of mechanical recording of testimony and of other proceedings in each cause, in lieu of the taking of 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 York City civil court and except with respect to proceedings under articles three, seven and eight of the family court act, in the family court (Judiciary Law §290-a ).
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 ). 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 ; see also, Alweis v. Evans, 69 NY2d 199, 204 ; Matter of Town of Brookhaven v. New York State Board of Equalization & Assessment, 88 NY2d 354, 361 ). 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.
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 Misc3d 698, 700-701 ). 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 Misc3d 1216A, 2013 NY Slip Op 51211U at *3).
California has similar statutes relating to court stenographers and their duties.5 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.6
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 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 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).
In conclusion, the Court of Appeal stated that:
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 ).
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-
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 ; Matter of Cree v. Terrance, 55 AD3d 964, 965 , lv denied 11 NY3d 714 ; Matter of Savage v. Cota, 66 AD3d 1491, 1492 ; Matter of Devre S., 74 AD3d 1848,1849 ; Matter of Garner v. Garner, 88 AD3d 708, 709 ; Matter of Chu Man Woo v. Qiong Yun Xi, 100 AD3d 883, 884 ; Rogers v. Avgush, 17 Misc3d 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.
This constitutes the opinion of the Court.
Dated: February, 2014
Jamaica, New York
1. The charged crimes in this case, although defined outside of the Penal Law (Penal Law §§10.00 ; 55.00; 55.10  [b];  [b]), are justiciable under article 3 of the Family Court Act (Fam. Ct. Act §301.2 ; see, Matter of Raymond G., 93 NY2d 531, 535 ).
2. In 1887 the Court of Appeals stated that "[t]o constitute a court of record in the legal sense it is not sufficient that the court should have a clerk and a seal. A court of record is defined by Blackstone to be one whose proceedings are enrolled for a perpetual memorial and testimony, which rolls are called the records of the court, and are of such high and supereminent authority that their truth is not to be called into question" (Hutkoff v. Demorest, 103 NY 377, 386 ). In modern times, "the keeping of permanent records no longer determines whether the court is a 'court of record' since courts of limited or special jurisdiction may be obliged to keep records and yet not be designated 'courts of record'" (28 NY Jur2d, Courts and Judges §4). Currently the trial level courts of record are the Supreme Court, the County Court, the Surrogate's Court, the Family Court, the Civil and Criminal Courts of the City of New York, city courts outside of New York City, and district courts (NY Const, art VI, §1 [b]; Judiciary Law §2). All other courts in New York "are courts not of record" (Judiciary Law §2).
3. Upon the abolition of the Children's Court and the Domestic Relations Court, the personnel of those courts were, to the extent practicable, transferred to the new Family Court of the State of New York (see, NY Const, art. VI, §35; Fam. Ct. Act §215). Presumably, the official court stenographers of the abolished courts continued their duties as officers of the new court.
4. Judiciary Law §291 provides that "[a] person shall not be appointed to the office of stenographer, unless he [she] is skilled in the stenographic art." The profession of certified shorthand reporting is regulated by the state Department of Education (Education Law §7500 to §7504).
5. The California Code of Civil Procedure §269 (a) "requires that the official reporter make the record of superior court proceedings, if requested by a party or by the court" (California Court Reporters Association v. Judicial Council of California, 39 CalApp4th 15, 30, 46 CalRptr 44, 54 [1st Dist 1995]; see also, Los Angeles County Court Reporters Association v. Superior Court of Los Angeles County, 31 CalApp4th 403, 407, 37 CalRptr2d 341, 344 [5th Dist 1995]).
6. The Superior Court of California is a court of original jurisdiction in both law and equity (West's Ann Cal Const, art VI, §10), and it is a court of record (West's Ann Cal Const, art VI, §1).
7. While it may be argued that the repeal of Judiciary Law §290-a on June 30, 1999 merely lifted the specific prohibition against electronic recording in proceedings under articles three, seven and eight of the Family Court Act, such an interpretation is untenable. The provisions of §270 of California's Code of Civil Procedure which authorized the electronic recording demonstration program also contained case-specific exemptions from electronic recording, specifically criminal and juvenile proceedings. A reading of the Court of Appeals' decisions in CCRA I and CCRA II makes clear that where another statute requires that an official reporter make verbatim notes of court proceedings, no part of the temporary electronic recording protocol survives after the expiration of the authority granted by the legislature.