Burrell v. Swartz

• Decision Date: 24 February 1983
• Docket Number: No. 82 Civ. 2466.,82 Civ. 2466.
• Citation: 558 F. Supp. 91
• Parties: William BURRELL, Plaintiff, v. Alice Justine SWARTZ and A.L. Luciano, Defendants.
• Court: U.S. District Court — Southern District of New York

558 F. Supp. 91

William BURRELL, Plaintiff, v. Alice Justine SWARTZ and A.L. Luciano, Defendants.

No. 82 Civ. 2466.

United States District Court, S.D. New York.

February 24, 1983.

William Burrell, plaintiff pro se.

Robert Abrams, New York State Atty. Gen., New York City, for defendants; George Perry, Asst. Atty. Gen., New York City, of counsel.

SOFAER, District Judge:

Plaintiff filed a pro se, in forma pauperis complaint alleging that defendant court reporters violated 42 U.S.C. § 1983 by making various errors and omissions in recording plaintiff's criminal trial in New York State Supreme Court. On April 28, 1982 this Court issued an order dismissing the complaint without prejudice pending resolution of plaintiff's state court motion to settle the transcript under C.P.L.R. 5525(c). Plaintiff subsequently reported that he had filed motions before both the trial court and the Appellate Division. The latter motion was dismissed, no doubt because C.P.L.R. 5525(c) provides only for settlement motions to the trial court, Kraemer v. Gallagher, 21 A.D.2d 682, 250 N.Y.S.2d 130 (2d Dep't 1969), and the motion to the trial court was denied. See Defendants' Motion Exhibit C (Denial of Motion to Settle, July 15, 1982). Accordingly, on August 19, 1982, the Court granted plaintiff's motion to reopen the case, and further ordered defendants to answer or move with respect to the complaint. Pursuant to that order, defendants have filed a motion to dismiss or for summary judgment. That motion is hereby granted.

No constitutional or federal statutory right exists to an absolutely accurate trial transcript. To the extent the complaint assumes the existence of such a right, it may be readily dismissed for failure to state a claim on which relief may be granted. Fed.R.Civ.P. 12(b)(6). Plaintiff could state a claim on which relief may be granted insofar as the alleged errors and omissions in his transcript prejudice an appeal of his conviction. While there is no constitutional right to appeal a criminal conviction, where a state provides a statutory right to appeal that right must meet the constitutional requirements of due process. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956). If a state fails to afford a fair and adequate procedure for settling transcripts on which to base such an appeal, or if a state official intentionally alters a transcript in a way that prejudices a defendant's appeal, the due process clause of the fourteenth amendment might be violated. See United States v. Pratt, 645 F.2d 89, 91 (1st Cir.) (delay in producing transcripts as violation of due process), cert. denied, 454 U.S. 881, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981); Rheuark v. Shaw, 628 F.2d 297, 305 (5th Cir.) (same), cert. denied, 450 U.S. 931, 101 S.Ct. 1392, 67 L.Ed.2d 365 (1980). To prove such a violation plaintiff would have to show either the unfairness of available settlement procedures or the existence of intentional tampering; then, he would have to prove the alleged errors and omissions in the trial transcript prejudice his statutory right to appeal.

The procedure followed in settling plaintiff's transcript was fair and fully met the requirements of due process. Where the parties cannot agree on disputed portions of the transcript, the decisions of nonparticipating judges at any level of the state or federal courts could not consistently improve upon the accuracy of a trial court's first-hand recollection. Indeed, it is difficult to imagine a reasonable alternative to relying on a trial court's recollection. See People v. Carney, 73 A.D.2d 9, 425 N.Y.S.2d 323 (1st Dep't 1980) (discussing historic reliance on recollection of trial judge in developing record for appeal). The procedure followed in this case under C.P. L.R. § 5525 is substantially the same as that provided by Federal Rule of Appellate Procedure 10(e). See 9 Moore's Federal Practice ¶ 210.08. Plaintiff's suggestion that he be allowed to present his trial notes and question jurors as to their recollection in a hearing on his proposed amendments only confirms that substantial resources would be required for a mini-trial over what happened at trial, with doubtful results.

Given the adequacy of the settlement procedures followed in this case, plaintiff's burden of proving his alternative grounds of due process violation — intentional tampering by defendant reporters — is virtually insurmountable. By rejecting the plaintiff's motion to settle the transcript, the trial court implicitly negated the existence of tampering. The trial court specifically found that "the transcript is accurate to the best of the Court's recollection." Defendants' Motion Exhibit C. As discussed, this recollection must of necessity be given great weight. Moreover, both defendants have submitted affidavits denying that anyone intentionally altered or omitted any portion of the proceedings at defendant's trial. Under these circumstances, plaintiff's bare allegations of intentional tampering, based solely on his recollection of statements made at trial (plaintiff did not have counsel at trial), fail to raise a genuine issue of fact. Accordingly, insofar as plaintiff's complaint is based on either the inadequacy of the settlement procedure or intentional tampering, defendants are granted summary judgment. Fed.R.Civ.P. 56.

Apart from the adequacy of the procedures used to settle plaintiff's transcript and the absence of a genuine issue of fact concerning tampering, the errors and omissions alleged in the complaint involve no items of meaningful significance to an appeal of plaintiff's conviction. Plaintiff has therefore failed to state a claim on which relief may be granted in that his complaint demonstrates that he could not...