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COURT OF APPEALS OF NEW YORK 1969.NY.40734 <>; 247 N.E.2d 492; 24 N.Y.2d 233 decided: March 6, 1969. THE PEOPLE OF THE STATE OF NEW YORK EX REL. WILLIAM CADOGAN, APPELLANT,v.DANIEL J. MCMANN, AS WARDEN OF CLINTON PRISON, RESPONDENT People ex rel. Cadogan v. McMann, 29 A.D.2d 844, affirmed. Counsel Lawrence Kevin Sheridan for appellant. Louis J. Lefkowitz, Attorney-General (Jack W. Hoffman and Ruth Kessler Toch of counsel), for respondent. Breitel, J. Chief Judge Fuld and Judges Scillepi, Bergan, Keating and Jasen concur; Judge Burke taking no part. Author: Breitel

People ex rel. Cadogan v. McMann, Breitel, J. Chief Judge Fuld and Judges Scillepi, Bergan, Keating and Jasen concur; Judge Burke taking no part.

Author: Breitel

 In habeas corpus proceedings relator seeks vacatur of the judgment in 1963 convicting him of the sale and possession of narcotic drugs, on 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 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). 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; cf. People v. Jaglom, 17 N.Y.2d 162). 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; cf. People v. Malinsky, 15 N.Y.2d 86, 90-91). 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 v. Montgomery (18 N.Y.2d 993, supra), (see, also, Roberts v. La Vallee, 389 U.S. 40).

Relator relies solely on People v. Rosario (supra) for his proposition that the right to transcripts of the pretrial suppression hearings, at least as to defendants in funds, was already established in 1963 when the pro se motion for the transcript was 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). 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, 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 the equal protection basis of the rule in the Montgomery case had long been applied by the Federal courts, so that the issue of retroactive or prospective application of the Montgomery case was "predetermined by established federal principles" (389 U.S., p. 43).

Apart from the statutory right involved in the Montgomery and Roberts cases (supra), a further significant difference must be noted between the Montgomery and Ballott cases, and this one. Those were decided on direct appeal from the convictions. This case arises in habeas corpus in collateral attack on a final judgment determined years ago. Relator had exhausted his appellate remedies in connection with that final judgment (23 A.D.2d 721, mot. for lv. to app. den.). Moreover, even the Rosario case (supra) in the rationale of which the Montgomery and Ballott rules have their source, insofar as the fairness of disclosure to the defense of prior ex parte statements or testimony of prosecution witnesses is concerned, was also on direct appeal from a conviction. Similarly, People v. Malinsky (supra) was determined on a direct appeal. None of the rules in these cases has been given retroactive effect in this State in matters gone to final judgment (see, however, People v. Hernandez, 10 N.Y.2d 774, and People v. Fasano, 11 N.Y.2d 436, 445, applying on direct appeal a materiality or substantial prejudice test to cases tried before the Rosario case, supra).

It is becoming increasingly evident that, as the standards of fair procedure for criminal trial are being raised, every improvement does not entail constitutional rights of such magnitude as to require, through post-conviction remedies, the undoing of past judgments prosecuted to finality. Thus this court said recently in People v. De Renzzio (19 N.Y.2d 45, 49):

"In basic conceptional theory the pronouncement of the common-law court is deemed retroactively to have been the rule of the past. A decision states the law as it ought rightly to have been understood from the beginning. But this is one of the fictions by which the common law lived; and nowhere is it more manifestly a fiction than in the area of constitutional interpretation.

"The fact is that there was a different judicial reading of the Constitution in 1938 and in 1960 on the admissibility of a post-indictment statement. There seems no compelling policy reason why, because of a general theory of retroactivity of judicial pronouncement we must, or should, impose a subsequently developed theory of law upon a trial competently managed nearly 30 years ago.

"We have no valid basis for assuming our predecessors were so entirely wrong and we quite so entirely right about our views that we should undo what was correctly done many years ago according to the general understanding of lawyers on how the Constitution should be read."

In this case, relator's conviction occurred November 19, 1963; the conviction was affirmed on March 8, 1965, and leave to appeal was denied by a Judge of this court May 13, 1965. The rules in the Montgomery and Ballott cases had not yet been articulated, those decisions having been rendered in 1966 and 1967 respectively. That the rules had their rational source in the long-standing constitutional mandate of equal protection and a 1961 expansion of concepts of due process fairness (People v. Rosario, supra) does not alter the fact that they were minted new, and changed practices deemed fair for a long period into the past. Unless, therefore, the new rules are shown to involve profoundly and directly ...

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