People v. Caban

• Citation: 123 Misc.2d 943,475 N.Y.S.2d 330
• Parties: The PEOPLE of the State of New York v. Richard CABAN, Defendant.
• Decision Date: 23 April 1984
• Court: United States State Supreme Court (New York)

Page 330

475 N.Y.S.2d 330

123 Misc.2d 943

The PEOPLE of the State of New York v. Richard CABAN, Defendant.

Supreme Court, Criminal Term,

Kings County, Part 9.

April 23, 1984.

Kronen & Bernstein, New York City, for defendant; Carl D. Bernstein, New York City, of counsel.

Elizabeth Holtzman, Dist. Atty., Kings County, for the People; Deborah Goldman, Brooklyn, of counsel.

MEMORANDUM

JULIUS VINIK, Justice.

The issue before this court is whether the District Attorney must supply all defendants, indigent or not, with a free transcript of the testimony of the People's witnesses given at a pre-trial hearing. Is such testimony when given at a time that both defendant and his counsel are present Rosario material? Does CPL 240.45 subdivision 1 require the District Attorney to supply these transcripts under all conditions? The court in People v. Ward, 121 Misc.2d 1092, 469 N.Y.S.2d 898 apparently has answered these questions in the affirmative. This court respectfully disagrees.

After completion of a pre-trial Huntley hearing counsel moved for an order compelling the District Attorney to supply him with a transcript of the pre-trial minutes. Although counsel was retained by defendant, it is claimed that he is indigent. For the purposes of this decision it will be assumed that the defendant is now indigent. The indigency of a defendant has no effect on whether a particular item is discoverable under CPL 240.45 or qualifies as Rosario material.

In People v. Ward, 121 Misc.2d 1092, 469 N.Y.S.2d 898, the court relied heavily on CPL 240.45 in granting defendant's request. CPL 240.45 as is relevant reads as follows:

"1. After the jury has been sworn and before the prosecutor's opening address .... the prosecutor shall ... make available to the defendant:

(a) Any written or recorded statement, including any testimony before a grand jury, made by a person whom the prosecutor intends to call as a witness at trial, and which relates to the subject matter of the witness's testimony." (Emphasis Supplied)

While there is some question whether untranscribed testimony constitutes recorded statements (U.S. v. Baker, 358 F.2d 18 cert. den. 385 U.S. 869, 87 S.Ct. 135, 17 L.Ed.2d 96) for the purposes of this decision the court will assume that such qualifies as a recorded statement (See Matter of Bertha K., 58 A.D.2d 811, 396 N.Y.S.2d 666). ¹

The statute requires only that the People make the statement "available". Nothing in the statute requires the People to order a stenographer to transcribe untranscribed minutes.

In People v. Kuss, 32 N.Y.2d 436, 345 N.Y.S.2d 1002, 299 N.E.2d 249, defendant claimed that he was entitled to a transcript of a tape recorded statement given by the People's witness. The court rejected that argument and stated at page 446, 345 N.Y.S.2d 1002, 299 N.E.2d 249:

"In our view the trial court fully complied with the Rosario mandate when it allowed an adjournment for more than a day in order to permit defense counsel to hear these tape-recorded statements in preparation for cross-examination. There is nothing in Rosario which imposes on the prosecutor the additional obligation of converting his work material into a form which would be most convenient for defense counsel at the trial. Nor is there any contrary authority in other jurisdictions which have adopted policies similar to Rosario (see Ann., Right of Defendant in Criminal Case to Inspection of Statement of Prosecution's Witness for Purposes of Cross-Examination and Impeachment, 7 ALR3d 181)."

It is sufficient compliance with the availability requirement of Rosario if defense counsel "heard" the testimony. Further, if the prosecutor is not required to transcribe a tape recorded statement, then why should they be required to transcribe hearing minutes. Nothing in the statute requires the People to insure that what defendant and his counsel have heard on the witness stand be put in a convenient form for defense counsel at the trial.

Additionally, the People have made the transcript "available". It is now well settled that an indigent defendant may apply to the court for a free transcript of the pre-trial hearing (People v. Montgomery, 18 N.Y.2d 993, 278 N.Y.S.2d 226, 224 N.E.2d 730; People v. West, 29 N.Y.2d 728, 326 N.Y.S.2d 388, 276 N.E.2d 226; People v. Zabrocky, 26 N.Y.2d 530, 311 N.Y.S.2d 892, 260 N.E.2d 529; Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41). By providing defense counsel with an opportunity to obtain a free transcript of the testimony the People have made the same available to him (see Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400). The court finds that this satisfies the statutory requirement of availability.

Also, as stated in People v. Copicotto, 50 N.Y.2d 222 at 226, 428 N.Y.S.2d 649, 406 N.E.2d 465:

"The criminal discovery procedure embodied in article 240, adopted in substance from Rule 16 of the Federal Rules Criminal Procedure (see Denzer, Practice Commentary, McKinney's Cons. Laws of N.Y., Book 11A, CPL art. 240, p. 466; Judicial Conference Report on the CPL, Appendix B, McKenna, Memorandum and Proposed Statute Re Discovery, McKinney's 1974 Session Laws of New York, pp. 1860, 1868)."

If the substance of Rule 16 was adopted by article 240 then the principles applicable to that rule should also be applicable to article 240. It is well settled in the Federal Courts that Rule 16 does not encompass transcripts of prior testimony where defendant and his counsel were present (U.S. v. Baker, 358 F.2d 18, 19-20 cert. den. 385 U.S. 869, 87 S.Ct. 135, 17 L.Ed.2d 96, supra; U.S. v. Munroe, 421 F.2d 644, 645; U.S. v. Harris, 542 F.2d 1283, 1293; U.S. v. Lurz, 666 F.2d 69, 79; U.S. v. Hensel, 699 F.2d 18, 39-40). If Rule 16 does not require the production of transcripts of prior testimony then it should be inferred that article 240 of the CPL does not.

To the degree that People v. Ward, 121 Misc.2d 1092, 469 N.Y.S.2d 898, supra, relied on People 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 stated:

"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." (Emphasis Supplied)

It is clear from this statement that the principle of Rosario does not require that defense counsel be "afforded transcripts of testimony". It must be remembered that Rosario is not a rule of constitutional magnitude but a rule of fairness (People v. Pinion, 56 A.D.2d 664, 665, 392 F.Supp. 53; People v. Beal, 57 A.D.2d 306, 309, 394 N.Y.S.2d 705; U.S. ex rel. Butler v. Schubin, 376 F.Supp. 1241, 1247). This court sees no unfairness in requiring defense counsel to obtain transcripts which will be provided for him free.

The sense of fairness of Rosario led the Court of Appeals to decide the Montgomery-Ballott line of cases (see People ex rel. Cadogan v. McMann, 24 N.Y.2d 233, pp. 235-236, 299 N.Y.S.2d 617, 247 N.E.2d 492). In People v. Montgomery, 18 N.Y.2d 993, 278 N.Y.S.2d 226, 224 N.E.2d 730, supra the court ruled that an indigent defendant is entitled to a free transcript of a preliminary hearing. The rationale of Montgomery is that the sole method of obtaining transcripts in New York is by purchasing the same. Thus, since a wealthy person can purchase the transcripts it violates the equal protection of the law clause of the Constitution to deprive an indigent defendant of the same right (see, also People v. West, 29 N.Y.2d 728, 326 N.Y.S.2d 388, 276 N.E.2d 226, supra; People v. Zabrocky, 26 N.Y.2d 530, 311 N.Y.S.2d 892, 260 N.E.2d 529, supra). If as argued by the Ward court, the defendant is entitled to a transcript either as Rosario material or pursuant to statute, then the Montgomery assumption would be invalid. Certainly, the Court of Appeals would not hold that an indigent defendant is entitled to two free copies (the first before trial as a result of the Montgomery rule and the second during trial as a result of the holding in Ward).

Consistent with the Montgomery decision the Court of Appeals decided a line of cases beginning with People v. Ballott, 20 N.Y.2d 600, 604-605, 286 N.Y.S.2d 1, 233 N.E.2d 103; see, also People v. Sanders, 31 N.Y.2d 463, 341 N.Y.S.2d 305, 293 N.E.2d 555; People v. Matz, 23 N.Y.2d 196, 295 N.Y.S.2d 918, 243 N.E.2d 140; People v. Brooks, 88 A.D.2d 451, 453 N.Y.S.2d 740. In People v. Ballott, supra the court stated 20 N.Y.2d at page 604, 286 N.Y.S.2d 1, 233 N.E.2d 103:

"In a case such as the present--where the first indictment had been dismissed because of insufficient evidence of identity and the first trial had resulted in a mistrial because the jury had been unable to agree on a verdict--the defendant's need for the minutes of the earlier trial is particularly obvious. Under the circumstances, the defense was 'entitled' to procure the testimony previously given by the witnesses who...