Sample of one of my appellate brief's, part Fifteen
SECOND QUESTION PRESENTED
Whether Appellant is entitled to automatic Reversal upon a showing that an adequate record for review is not available.
STATEMENT OF FACTS
The Trial court has never filed a proper answer or return in this case, nor has a record in this case has never been established.
ARGUMENT
It has been held that “It is the duty of the Justice presiding in a local criminal court to set forth or summarize evidence, facts or occurrences in or adduced at the proceedings resulting in judgment, sentence, or order, which constitute the factual foundation for the contentions alleged in the affidavit of errors. (CPL 460.10 [3][d].)” (People v. Dewitt 171 Misc.2d 622 (1996)) Justice Spiegel did not do so, even when mandated by statute to do so and when ordered by this Court to do so on May 26, 2006.
It has also been clearly held that “…upon a showing that an adequate record for review is not available that a defendant is entitled to automatic reversal” (Feldes, at 665 citing People v Glass (1977) 43 N.Y.2d 283, 285 in the dissenting opinion). In the case at bar, the record is clearly unavailable and the Appellant has used all due diligence to avail himself of the record.. Lagrange Town Justice Spiegel who heard the case has left the bench and is no longer a Town Justice in Lagrange. Justice Spiegel never filed any return or answer in this matter. Any attempt in filing a return and answer was made by Justice Spiegel’s successor Justice Greller, who did not hear the case and cannot possibly assist in assembling the minutes of the case.
In this case, any meaningful reconstruction of the minutes of the trial would require participation of the Town Justice who presided over the trial. The District Attorney present; due to the fact that their offices have opted out of prosecution of traffic matters. On October 25, 2006, in a last ditch effort to compile the record, Appellant’s counsel sent letters to not only Justice Spiegel, but also to the court and to the prosecutor Trooper Cogan, asking for their assistance in compiling the minutes of the trial. (see exhibits “A”, “B” and “C”) As of the date of this brief, Appellant has not received any response from the aforementioned parties.
Thus, Appellant is entitled to automatic reversal because an adequate record for review is not available.
THIRD QUESTION PRESENTED
Whether Appellant is entitled to reversal because the State’s witness was allowed to testify in a narrative form.
STATEMENT OF FACTS
As noted, the District Attorney was not present at this trial. Thus, State Trooper Cogan served as the prosecutor and sole witness for the People. At the commencement of the People’s case, defense counsel objected to the form of testimony as being narrative. Nonetheless, the Trial Court judge allowed Trooper Cogan to proceed to testify in narrative form.
|
