Cite as: Matter of Czajka v. Dellehunt, 5395-12, NYLJ 1202582974275, at *1 (Sup., COLUMBIA, Decided December 26, 2012)

Acting Justice Cathryn M. Doyle

Decided: December 26, 2012

ATTORNEYS

District Attorney: Paul Czajka, Esq., Hudson, New York.

David A. Dellehunt, Esq., Kinderhook Town Justice, Niverville, New York.

Papers Considered:

Order to Show Cause, Verified Petition dated December 20, 2012 and supporting documentation attached.

For a Judgment Under Article 78 of The Civil Practice Law and Rules in the Nature of Mandamus

DECISION & ORDER

 

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By Order to Show Cause returnable December 26, 2012, Petitioner Paul Czajka, in his capacity as District Attorney, Columbia County, New York, seeks an Order of this Court, pursuant to CPLR Article 78, directing and requiring the respondent to transmit the electronic recording of the proceeding held in the Town of Kinderhook Court, on the 2nd day of October 2012, to Candyco Inc., at 1 Mann Boulevard, Clifton Park, New York 12065, and provide petitioner with copy(s) of the original electronic recording made of Court proceedings held in the Town of Kinderhook Court on June 4, 2012 and October 2, 2012, together with such other and further relief as the Court may deem just and proper. Proof of service was duly filed with this Court.1

There are two issues before this Court: 1) is the Kinderhook Town Court required to transmit an electronic recording of Court proceedings to an Official transcriber at the request of the District Attorney; and 2) is the Kinderhook Town Court required to provide the District Attorney with a copy of the actual compact disk used to record such proceeding.

Pursuant to an Administrative Order of the Chief Administrative Judge of the Courts each town and village court of the Unified Court System is required to mechanically record all proceedings that come before that court (AO/245/08). This administrative rule is applicable to the Kinderhook Town Court which makes an electronic recording of all proceedings before it.

The Kinderhook Town Court was in session on October 2, 2012. Columbia County District Attorney Paul Czajka and Assistant District Attorney, Robert M. Gibson, represented the

 

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People in all matters that came before the Kinderhook Town Court. The various cases before the Court that evening involved a violation of the N.Y. Penal Law, a violation of the N.Y. Vehicle and Traffic Law, or both. The District Attorney's Office made an oral request of Justice Dellehunt to provide the District Attorney's Office with a complete transcript the proceedings.

By letter dated October 4, 2012, Assistant District Attorney Robert M. Gibson requested that the Court send a digital copy of the proceedings that took place on October 2, 2012 to Candyco. Inc., with a second copy of the digital recording being directly provided to the Columbia County District Attorney's Office.

David A. Dellehunt, responded by letter dated October 31, 2012, requesting that Assistant District Attorney Robert M. Gibson provide the names of the specific cases he wishes to have transcribed. The District Attorney's Office made "several" additional oral requests and by letter dated November 13, 2012, reiterated their request that the electronic recording of all proceedings held the night of October 2, 2012 be sent for transcription. On December 3, 2012, the Kinderhook Town Justice ruled from the bench, that the People "may not be entitled" to certain criminal and vehicle and traffic cases heard on October 2, 2012.2 Petitioner, thereafter, commenced the instant Article 78 proceeding in the nature of mandamus.

Mandamus to compel is a judicial command to an officer or body to perform a specified ministerial act that is required by law to be performed (see Hamptons Hospital & Medical Center, Inc. v. Moore, 52 NY2d 88 [1981]). In order to succeed in mandamus, the petitioner must show a "clear legal right" to the requested relief; if the right to performance is clouded by "reasonable doubt or controversy," the petition must be denied (see Association of Surrogate and Supreme Court Reporters Within the City of New York v. Bartlett, 40 NY2d 571 [1976]). Only

 

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ministerial acts that involve no exercise of judgment or discretion are subject to mandamus to compel (see Gimprich v. Board of Educ. of City of New York, 306 NY 401 [1954]). Mandamus cannot be used to compel an officer or tribunal to reach a particular outcome with respect to a decision that turns on the exercise of discretion or judgment (see Kloster-mann v. Cuomo, 61 NY2d 525 [1984]).

Transmitting a copy of the electronic compact disk or other device used to record court proceedings to a transcriber is a purely ministerial act (see Tango v. Tulevech, 61 NY2d 34, 41 [1983] citing Waterman v. State, 35 Misc.2d 954, 957 [1962], modified, 19 AD2d 264 [4th Dept. 1963], affd 14 NY2d 793 [1964]). No exercise or judgment is required in the performance of such a duty.

Many New York State Courts use electronic devices to record court proceedings. Similar to the town and village courts of the Unified Court System, Albany Surrogate's Court uses an electronic device to record court proceeding.3 To have a transcript produced from an electronically recorded matter, any person, including but not limited to, a litigant, reporter or nosy neighbor, may request that a copy of the disk be sent to a transcription service chosen from an Office of Court Administration approved list. There is no statute or court rule that requires identification of a case by name or index number. A request for a transcript may be made of any court proceeding so long as the Court and date is sufficiently identified in the request. The Court itself does not transcribe the disks. Transcribers are not employed by the Unified Court System; they are independent contractors. There is a per page fee for all transcripts. When requesting a transcript, a written request is filled out and returned to the Court Clerk who then processes such request. A roster of approved transcription services is available at:

 

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http://www.nycourts.gov/howdoi/transcripts.shtml and is attached herein. Candyco Transcription Service, Inc., located at 1 Mann Boulevard, Clifton Park, NY 12065, appears as an authorized provider on the roster dated November 16, 2012. Accordingly, the District Attorney's request for such transcription should have been processed by Court personnel immediately. The Court Calendar of the Kinderhook Town Court dated October 2, 2012 does not indicate that the Court entered an order in any action or proceeding sealing the court record, in whole or in part. In fact, all proceedings held on October 2, 2012, were held in open court in full view and hearing of the Public. Moreover, the District Attorney was a party to all Justice Court proceeding on that date with the possible exception of one civil proceeding. Court records in civil actions may not be sealed, "except upon a written finding of good cause, which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interests of the public as well as of the parties. Where it appears necessary or desirable, the court may prescribe appropriate notice and an opportunity to be heard." (see Administrative Order/17/91). Certainly, the respondent would remember making a written finding and note it in the Court record.

Turning now to the District Attorney's request for a copy of the actual compact disk or other digital recording itself, the Court finds that making a copy of the disk is also a purely ministerial act. Albany County Surrogate's Court charges a $6.00 fee for the reproduction of the disk. The Commission on Public Access to Court Records written report to the Chief Judge of the State of New York dated February, 2004 discusses the presumptions of openness at great length. It states, in part, that

"[b]oth New York statutory and common law create a presumption that judicial proceedings and case records are to be open to the public. Section 4 of the Judiciary Law requires that 'the sittings of every court within this state shall be public, and every citizen may freely attend the same.' Sections 255 and 255-b of the Judiciary Law (the judiciary's analogue to the New York State Freedom of Information Law) require that docket books and court records be public. Section

 

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255 provides that: 'A clerk of a court must, upon request, and upon payment of or offer to pay, the fees provided allowed by law, or if no fees are expressly allowed by law, fees at the rate allowed to a county clerk for a similar service, diligently search the files, papers, records, and documents in his office; and either make one or more transcripts or certificates of change therefrom, and certify to the correctness thereof, and to the search, or certify that a document or paper, of which the custody legally belongs to him, cannot be found.'" In the interest of the value placed on open court proceedings, this Court sees no

legitimate reason for a Court to deny the District attorney's request for a copy of the actual digital recording itself. Transcribers are human and are not beyond making a mistake in transcription. The Rules of the Chief Administrator acknowledge that transcribers may make mistakes. Section 108.3 of the Rules of the Chief Administrator state that all transcribers agree to "have their transcripts subject to random accuracy audits by the Unified Court System."

Based upon the foregoing, the respondent is hereby

ORDERED to transmit the electronic recording of the proceeding held in the Town of Kinderhook Court, on the 2nd day of October 2012, to Candyco Inc., at 1 Mann Boulevard, Clifton Park, New York 12065, and provide petitioner with copy(s) of the original electronic recording made of Court proceedings held in the Town of Kinderhook Court on June 4, 2012 and October 2, 2012 within 10 days of notice of entry of this Decision & Order.

The foregoing constitutes the Decision & Order of the Court. The original Decision & Order and all papers are returned to petitioner. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel are not relieved from the provisions of that rule regarding filing, entry and notice of entry.

SO ORDERED.

1. Respondent David A. Dellehunt sent a letter to the Court requesting a 30-day adjournment of this proceeding. Dellahunt's letter states that "Assistant District Attorney James Carlucci contacted Court Clerk Tina Puckett today indicating that the District Attorney's Office consents to the adjournment". It has been the longstanding policy of this Court that adjournments are granted only on the written consents of the both parties. The District Attorney's Office has not contacted this Court. Court Clerk Tina Puckett works for the Kinderhook Justice Court and respondent is the Presiding Justice of such Court. Accordingly, a request for an adjournment was not properly made before this Court.

2. This Court must rely on the verified petition regarding statements made on record in open Court, as opposed to a transcript of the record itself, that being the crux of the issue before this Court.

3. I have been the Albany County Surrogate's Court Judge since January 1, 2000. Prior to that, I served as the Chief Clerk of that court for 20 years.