Eric W., Matter of

• Decision Date: 05 June 1986
• Citation: 496 N.E.2d 219,68 N.Y.2d 633,505 N.Y.S.2d 60
• Parties: , 496 N.E.2d 219 In the Matter of ERIC W., a Person Alleged to be a Juvenile Delinquent, Appellant. In the Matter of ARTHUR L., a Person Alleged to be a Juvenile Delinquent, Appellant. In the Matter of DWAYNE R., a Person Alleged to be a Juvenile Delinquent, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 60

505 N.Y.S.2d 60

68 N.Y.2d 633, 496 N.E.2d 219

In the Matter of ERIC W., a Person Alleged to be a Juvenile Delinquent, Appellant In the Matter of ARTHUR L., a Person Alleged to be a Juvenile Delinquent, Appellant In the Matter of DWAYNE R., a Person Alleged to be a Juvenile Delinquent, Appellant.

Court of Appeals of New York.

June 5, 1986.

Burt Grayman, Carol Goldstein and Lenore Gittis, New York City, for Eric W., appellant.

Carol Goldstein and Lenore Gittis, New York City, for Arthur L. and Dwayne R., appellants.

Frederick A.O. Schwarz, Jr., Corp. Counsel (Trudi Mara Schleifer and Francis F. Caputo, New York City, of counsel), for respondent in first above-entitled proceeding.

Robert M. Morgenthau, Dist. Atty. (Barbara A. Sheehan and Norman Barclay, New York City, of counsel), for respondent in second above-entitled proceeding.

Mario Merola, Dist. Atty. (Kevin D. McLoone and Billie Manning, New York City, of counsel), for respondent in third above-entitled proceeding.

MEMORANDUM.

The appeals in these three cases should be dismissed upon the ground that no substantial constitutional question is involved.

In each of these juvenile delinquency proceedings, the appellant, a juvenile under 16 years of age, was charged with having committed an act which, if done by an adult, would have constituted a crime (see, Family Ct Act art 3). In each case, Family Court held a brief Wade or Huntley hearing, well under an hour in length, followed immediately by a fact-finding hearing lasting no longer than two hours. In two of the cases, one witness testified at the pretrial hearing; in the third, three witnesses testified. All pretrial witnesses then testified at the fact-finding hearings. In each case the judge and counsel were the same at the pretrial and the fact-finding hearings. In Eric W. and Arthur L. defense counsel informed the court at the beginning of the Wade hearings that they wanted copies of transcripts of the hearings, as well as adjournments of the fact-finding hearings to permit transcription, and unsuccessfully renewed those requests immediately prior to the fact-finding hearings. In Dwayne R., 124 Misc.2d 644, 476 N.Y.S.2d 752, counsel first requested a transcript of the Huntley hearing and an adjournment to permit transcription at the beginning of the fact-finding hearing, which the court denied.

In each case appellant was adjudicated a juvenile delinquen and on appeal from the Family Court order of disposition, the Appellate Division affirmed, 111 A.D.2d 1082, 491 N.Y.S.2d 885, 115 A.D.2d 1021, 496 N.Y.S.2d 596 and 116 A.D.2d 1047, 496 N.Y.S.2d 1003, without opinion. The appeals have been taken to this court on constitutional grounds pursuant to CPLR 5601(b)(1). Each appellant urges that the trial court erred when it refused to grant an adjournment of the fact-finding hearing so that he could obtain a transcript of the pretrial hearing. Ordinarily, of course, the decision whether to grant an adjournment of trial is within the sound discretion of the trial court and not of constitutional dimension. Appellants argue, however, that a constitutional question is involved because they were entitled, as a matter of due process, to transcripts of pretrial proceedings, and that the failure to provide transcripts denied them fair trials (see, People ex rel. Cadogan v. McMann, 24 N.Y.2d 233, 299 N.Y.S.2d 617, 247 N.E.2d 492; People v. Ballott, 20 N.Y.2d 600, 286 N.Y.S.2d 1, 233 N.E.2d 103; People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64).

The appeals should be dismissed. In Dwayne R. the purported constitutional issue has not been preserved for review. As we made clear in People v. Sanders, 31 N.Y.2d 463, 467, 341 N.Y.S.2d 305, 293 N.E.2d 555, a defendant must "make his request for a transcript of the minutes of any...