People ex rel. Cadogan v. McMann

CourtNew York Court of Appeals
Writing for the CourtBREITEL; FULD; BURKE
Citation299 N.Y.S.2d 617,247 N.E.2d 492,24 N.Y.2d 233
Parties, 247 N.E.2d 492 The PEOPLE of the State of New York ex rel. William CADOGAN, Appellant, v. Daniel J. McMANN, as Warden of Clinton Prison, Dannemora, New York, Respondent.
Decision Date06 March 1969

Page 617

299 N.Y.S.2d 617
24 N.Y.2d 233, 247 N.E.2d 492
The PEOPLE of the State of New York ex rel. William CADOGAN, Appellant,
v.
Daniel J. McMANN, as Warden of Clinton Prison, Dannemora,
New York, Respondent.
Court of Appeals of New York.
March 6, 1969.

Lawrence Kevin Sheridan, for appellant.

[24 N.Y.2d 234] Louis J. Lefkowitz, Atty. Gen. (Jack W. Hoffman and Ruth Kessler Toch, Albany, of counsel), for respondent.

BREITEL, Judge.

In habeas corpus proceedings relator seeks vacatur of the judgment in 1963 convicting him of the sale and possession of narcotic drugs, on

Page 618

which he received concurrent sentences, the greatest of which was from 15 to 30 years. Prior to trial, he was denied a transcript for use upon the trial of the minutes of an evidence suppression hearing conducted pursuant to section 813--c of the Code of Criminal Procedure. The request was not renewed at the trial.

Relator urges that, because of his indigency, he was denied due process and the equal protection of the laws guaranteed by the Federal and State Constitutions (U.S.Const. 14th Amdt. § 1; N.Y.Const. art. I, §§ 6, 11), arguing, in part, that a criminal defendant in funds could have obtained the hearing minutes. He notes particularly that this court has accorded an [24 N.Y.2d 235] indigent defendant the right to a free copy of the minutes of a preliminary hearing by extension of the applicable statute (Code Crim.Pro. § 206; People v. Montgomery, 18 N.Y.2d 993, 278 N.Y.S.2d 226, 224 N.E.2d 730). He also notes that, even in the absence of a statutory right to minutes available to a criminal defendant in funds, this court has accorded an indigent defendant, on seasonable request, the right to the minutes of a prior trial or of a Grand Jury (People v. Ballott, 20 N.Y.2d 600, 604, 286 N.Y.S.2d 1, 4, 233 N.E.2d 103, 105, cf. [247 N.E.2d 493] People v. Jaglom, 17 N.Y.2d 162, 269 N.Y.S.2d 405, 216 N.E.2d 576). He points out that the minutes are especially important when, as occurred in this case, some of the witnesses who had testified at the suppression hearing also testified at the trial. But now possessed of the transcript, he offers only conjecture as to possible cross-examination of the police officers who testified on the trial. Moreover, the conjectures are not based upon flat contradictions as to material matters, but omissions or additions in testimony given at the suppression hearing and at the trial.

The rules laid down in the Montgomery and Ballott cases depend upon the constitutional right to equal protection of the laws or the recognition that the availability to the defense of pretrial statements and prior testimony of prosecution witnesses is significant, and sometimes vital to the cross-examination of such witnesses, and of aid in the preparation for trial generally (People v. Rosario, 9 N.Y.2d 286, 289--290, 213 N.Y.S.2d 448, 450--451, 173 N.E.2d 881, 882--883; cf. People v. Malinsky, 15 N.Y.2d 86, 90--91, 262 N.Y.S.2d 65, 69--71, 209 N.E.2d 694, 697--698). Because the same reasons are applicable to the minutes of pretrial suppression hearings, relator contends that the Montgomery-Ballott rule should be extended to them.

Relator argues that at the time of his 1963 motion for the transcript he was constitutionally entitled to its production. In the alternative he urges that a defendant prepared to pay for the transcript could have received it as a matter of right, and that equal protection required that he not be so deprived because of lack of funds, citing, among others, People

Page 619

v. Montgomery (18 N.Y.2d 993, 278 N.Y.S.2d 226, 224 N.E.2d 730, Supra), (see, also, Roberts v. La Vallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41).

Relator relies solely on People v. Rosario (supra) for his proposition that the right to transcripts of pretrial suppression hearings, at least as to defendants in funds, was already established in 1963 when the Pro se motion for the transcript was [24 N.Y.2d 236] made. The Rosario case, however, held merely that the defense was entitled, at the trial, to the prior statements of prosecution witnesses made 'to police, district attorney or grand jury' (id., p. 289, 213 N.Y.S.2d p. 450, 173 N.E.2d p. 882). The defense was thereby given access to ex parte statements that would otherwise remain undisclosed to him throughout the trial. The Rosario case required only that all ex parte statements made by prosecution witnesses should be made available to the defense at the trial. It did not require that the defense be afforded transcripts of testimony given in the presence of both the defendant and his counsel, or that they be made available before the trial or before the prosecution witnesses had testified.

True, the rationale for the rule was that such statements might be of significant assistance to the defense, even if not inconsistent with the trial testimony, and, of course, transcripts of testimony given in the presence of a defendant represented by counsel are also helpful in trial preparation and tactics. The Rosario doctrine was, however, not extended to cover pretrial requests for transcripts of earlier proceedings at which the defendant was present until 1967, in People v. Ballott (20 N.Y.2d 600, 603--605, 286 N.Y.S.2d 1, 3--5, 233 N.E.2d 103, 104--106, Supra).

The issue, then, is whether the right to such transcripts suggested by the Ballott case is to be applied retroactively to relator's case. On this issue, People v. Montgomery (supra) and Roberts v. La Vallee (supra) do not control. The Montgomery case held that the statutory right to a transcript of a preliminary hearing (Code Crim.Pro. § 206) could not be denied because of indigency. The Roberts case, referring to the State statute, held that...

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27 practice notes
  • People v. Perez
    • United States
    • New York Supreme Court Appellate Division
    • April 9, 1984
    ...v. Horton, 18 N.Y.2d 355 [275 N.Y.S.2d 377, 221 N.E.2d 909], supra; for a statement to this effect see People ex rel. Cadogan v. McMann, 24 N.Y.2d 233, 237 [299 N.Y.S.2d 617, 247 N.E.2d The above-quoted language from Consolazio (supra ) is straightforward and unequivocal; a harmless error a......
  • Barbour v. People
    • United States
    • United States State Supreme Court (New York)
    • November 18, 1994
    ...and sometimes vital to the cross-examination of witnesses, and of aid in the preparation of trial" (People ex rel. Cadogan v. McMann, 24 N.Y.2d 233, 235, 299 N.Y.S.2d 617, 247 N.E.2d 492), the question of the applicability of Rosario to a parole revocation hearing need not be resolved The i......
  • People v. Morales
    • United States
    • New York Court of Appeals
    • June 17, 1975
    ...311 N.Y.S.2d 892, 260 N.E.2d 529; People v. Reynolds, 25 N.Y.2d 489, 307 N.Y.S.2d 201, 255 N.E.2d 548; People ex rel. Cadogan v. McMann, 24 N.Y.2d 233, 299 N.Y.S.2d 617, 247 N.E.2d 492; People v. McQueen, 18 N.Y.2d 337, 274 N.Y.S.2d 886, 221 N.E.2d 550). Their impress is also to be found in......
  • People v. Caban
    • United States
    • New York Supreme Court
    • April 23, 1984
    ...v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, this court must respectfully disagree. In People ex rel. Cadogan v. McMann, 24 N.Y.2d 233 at page 236, 299 N.Y.S.2d 617, 247 N.E.2d 492 the court "The [123 Misc.2d 946] Rosario case required only that all ex parte statements made b......
  • Request a trial to view additional results
27 cases
  • People v. Perez
    • United States
    • New York Supreme Court Appellate Division
    • April 9, 1984
    ...v. Horton, 18 N.Y.2d 355 [275 N.Y.S.2d 377, 221 N.E.2d 909], supra; for a statement to this effect see People ex rel. Cadogan v. McMann, 24 N.Y.2d 233, 237 [299 N.Y.S.2d 617, 247 N.E.2d The above-quoted language from Consolazio (supra ) is straightforward and unequivocal; a harmless error a......
  • Barbour v. People
    • United States
    • United States State Supreme Court (New York)
    • November 18, 1994
    ...and sometimes vital to the cross-examination of witnesses, and of aid in the preparation of trial" (People ex rel. Cadogan v. McMann, 24 N.Y.2d 233, 235, 299 N.Y.S.2d 617, 247 N.E.2d 492), the question of the applicability of Rosario to a parole revocation hearing need not be resolved The i......
  • People v. Morales
    • United States
    • New York Court of Appeals
    • June 17, 1975
    ...311 N.Y.S.2d 892, 260 N.E.2d 529; People v. Reynolds, 25 N.Y.2d 489, 307 N.Y.S.2d 201, 255 N.E.2d 548; People ex rel. Cadogan v. McMann, 24 N.Y.2d 233, 299 N.Y.S.2d 617, 247 N.E.2d 492; People v. McQueen, 18 N.Y.2d 337, 274 N.Y.S.2d 886, 221 N.E.2d 550). Their impress is also to be found in......
  • People v. Caban
    • United States
    • New York Supreme Court
    • April 23, 1984
    ...v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, this court must respectfully disagree. In People ex rel. Cadogan v. McMann, 24 N.Y.2d 233 at page 236, 299 N.Y.S.2d 617, 247 N.E.2d 492 the court "The [123 Misc.2d 946] Rosario case required only that all ex parte statements made b......
  • Request a trial to view additional results

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