Opinion
2004KN009754.
Decided November 14, 2005.
Alfonso Forney moves pro se pursuant to CPL 440.10 to vacate a judgment of conviction entered against him in this court on August 25, 2004 (Wayne Saitta, J.). By that judgment, Forney was convicted, after a nonjury trial, of theft of services (Penal Law § 165.15(3)) and criminal impersonation in the second degree (Penal Law § 190.25(2)), and was sentenced to terms of sixty days' imprisonment, to be served concurrently with each other and with a period of reincarceration imposed for violating his parole under an earlier sentence. Forney now complains that the trial judge improperly denied him a free transcript of pretrial and trial proceedings, and failed to conduct a proper inquiry before granting his request to waive a jury trial. For the reasons which follow, Forney's motion is summarily denied.
A. Procedural Backdrop
At the threshold, I review the pertinent procedural history:
Forney was arrested on February 13, 2004, and arraigned the next day on a misdemeanor complaint charging him with theft of services and criminal impersonation in the second degree. In essence, the People accused Forney of seeking to obtain subway service without paying for it by falsely telling a token-booth clerk that he worked for the District Attorney's Office, and by presenting what appeared to be, but was not, a law-enforcement badge. The complaint was converted to an information by the filing of a supporting deposition on February 19, 2004.
Forney had been assigned Legal Aid Society counsel at his arraignment on the misdemeanor complaint, and on April 13, 2004, the date scheduled for pretrial hearings and the trial, he appeared before Judge Saitta with his Legal Aid attorney, Kathleen Johnson. There, Ms. Johnson requested on Forney's behalf that he be permitted to defend pro se (Apr. 13, 2004 Procs. at 2). In support of this application, Ms. Johnson handed the court a copy of the Appellate Division's decision in People v. Forney, 303 AD2d 763 (2nd Dep't 2003), which had reversed Forney's unrelated jury-trial conviction of first-degree sodomy because he had been improperly denied permission to defend pro se ( id. at 2-3). Forney, for his part, emphasized to Judge Saitta that he had spent much of a four-year state-prison sentence researching law, including the "CPL, CPLR and the Penal Law and things of that nature" ( id. at 4). Judge Saitta discussed this request with Forney ( id. at 3-9), warning him of the pitfalls of defending pro se ( id. at 3, 6-9), and suggesting that he agree to continue to be represented by Ms. Johnson, an "able attorney" with whom he "seem[ed] able to communicate effectively" ( id. at 8). Forney adhered to his request to defend pro se, and Judge Saitta at length granted it ( id. at 8-9). Forney had asked that Ms. Johnson "remain on the case as standby if she is willing to assume that responsibility" ( id. at 7); the judge directed her to remain in the courtroom in that capacity, and she agreed ( id. at 8).
The minutes of the April 13, 2004 proceedings have been transcribed, and citations to those proceedings herein are to that transcript.
There immediately followed a brief suppression hearing ( id. at 12-37), at which the only witness to testify was Police Officer Christopher Guginsky. Forney conducted the hearing on his own behalf, with Ms. Johnson at the defense table to give advice if requested ( id. at 10). The suppression motion was denied ( id. at 36-37).
Immediately after the hearing, Forney advised the court that, "[a]fter speaking with Ms. Johnson", he had decided to "waive a jury on this case" ( id. at 37-38). The court agreed to "do this case as a bench trial", to which Forney replied, "All right. Thank you" ( id. at 38). When the parties reassembled after a luncheon recess to begin the trial, Forney reminded the court that "there should be a written waiver when waiving a jury trial. I have not signed one yet" ( id. at 40). Judge Saitta asked whether it was Forney's "desire to waive the trial by jury in this matter", and Forney replied, "Yes" ( id. at 41). The court obtained a waiver form and handed it to Forney to sign ( id.). In the executed form, which remains in the court file, Forney avowed that I, the defendant herein, having been charged, in an accusatory instrument filed against me, with the crimes of [theft of services and criminal impersonation in the second degree] and having been informed of my right to a trial of these charges by a jury, do hereby waive my right to a trial of these charges by a jury as guaranteed me by the Constitution of the United States, the Constitution of the State of New York, and by section 340.40 of the Criminal Procedure Law, and consent to a trial of these charges by the court without a jury.
Judge Saitta executed the form as well, attesting therein that "[t]he above-named defendant appeared before this court on this date and in open court, in the presence of this court, and with the approval of this court, signed the foregoing waiver of a jury trial".
The trial began that afternoon, and Officer Guginsky, the People's hearing witness, completed his trial testimony that day (Apr. 13, 2004 Procs. at 76-108). The trial was in recess the following day. On April 15, 2004, at the trial's conclusion, Judge Saitta rendered a verdict of guilty on both counts.
Forney had voiced no second thoughts during the trial about his decision to be tried by the court alone, or challenges to the procedural adequacy of Judge Saitta's handling of his request. Nonetheless, one month after the guilty verdict, Forney moved pro se to set aside the guilty verdict pursuant to CPL 330.30(1) on the ground that the judge had approved his jury trial waiver without making an inquiry sufficient to show that it was knowing and voluntary (Forney May 13, 2004 Notice of Mot. Aff. Supp. Mot. Pursuant to CPL 330.30 at 2, 4-5). He also asserted additional grounds for setting aside the verdict not pertinent here ( id. at 2-4, 6).
The People opposed this motion by papers dated and filed July 9, 2004, to which they appended the transcript of the April 13 and 15, 2004 proceedings. As for the jury-waiver argument, the People contended that it was procedurally defaulted due to Forney's failure to raise it at the trial, and that the waiver in any case met the pertinent constitutional and statutory criteria (Vasquez July 9, 2004 Aff. Opp'n Mot. Set Aside Verdict for New Trial ¶¶ 14-15; People's July 9, 2004 Mem. Law at 7-8).
On August 25, 2004, the parties appeared before Judge Saitta for decision (Aug. 25, 2004 Procs. at 2). There, Forney supplemented the jury-waiver prong of his motion by submitting a copy of the Appellate Division's decision in People v. Davidson, 136 AD2d 66 (2nd Dep't 1988). The People again argued that Forney had properly waived his jury-trial rights (Aug. 25, 2004 Procs. at 2-3). Judge Saitta denied Forney's motion in a written decision, concluding, in pertinent part, that Forney's waiver of his right to a jury trial comported with constitutional and statutory criteria, and was knowing, voluntary, and intelligent (Aug. 25, 2004 Dec. Order at 6-7). The court thereupon imposed the sentence described above.
Forney has taken and perfected an appeal from this judgment to the Supreme Court, Appellate Term, in which he is represented by assigned Legal Aid Society counsel. In his appellate brief, dated June 28, 2005, Forney argues one ground only for reversing his conviction that Judge Saitta's inquiry concerning his request to defend pro se was inadequate, and that he was thus denied his constitutional right to the assistance of counsel. The People have not yet filed their respondent's brief, and argument of the appeal has not been calendared.
Meanwhile, as noted, Forney has moved pro se to vacate the judgment of conviction. (His supporting papers, dated March 31, 2005, supersede a handwritten pro se motion of February 23, 2005, seeking the same relief, which he withdrew by a letter to the court of March 18, 2005.) Forney asserts two grounds for his motion: first, that the trial court abridged his constitutional rights by assertedly denying pretrial and posttrial requests by him for free transcripts of the hearing and trial proceedings (Forney Mar. 31, 2005 Aff. Supp. Mot. Pursuant to C.P.L. 440.10 at 2-5); and, second, that the trial court's inquiry before accepting Forney's waiver of a jury trial was inadequate to assure that the waiver was entered knowingly and intelligently ( id. at 2-3, 5-7).
The People have opposed this motion, challenging both prongs on procedural and substantive grounds (Neubort Aug. 19, 2005 Aff. Opp. Mot. Vacate J. Conviction; People's Aug. 19, 2005 Mem. Law). By a letter to the court of August 22, 2005, Forney has acknowledged receipt of the People's response, and asked that the motion "be decided on all papers/documents submitted".
B. The Transcript Argument
As noted, Forney contends that Judge Saitta abridged his constitutional rights by denying him a free transcript of the pretrial suppression and trial proceedings. In this regard, Forney asserts that "EITHER immediately prior or immediately after said [pretrial suppression] hearing, defendant on record, requested a daily copy of the minutes. The court denied the motion" (Forney Mar. 31, 2005 Aff. Supp. Mot. Pursuant to C.P.L. 440.10 ¶ 5). Forney contends ( id. ¶¶ 12-15, 17) that the trial court thereby abridged his constitutional rights under People v. Zabrocky, 26 NY2d 530 (1970), People v. West, 29 NY2d 728 (1971), and People v. Peacock, 31 NY2d 907 (1972), all of which recognize that when a suppression hearing is held on a date preceding the trial, an indigent defendant, on timely request, must be provided with a free transcript of the hearing to use in preparing for trial and at the trial itself. Forney further asserts that "[s]ometime during the month of May 2004" he filed a motion seeking transcripts of the suppression hearing and the by-then-completed trial, which the court "acknowledged having received", but which the court failed to address ( id. ¶¶ 8-9, 16). Forney asserts that he needed the transcripts at that stage for an upcoming parole-violation hearing, and that the court's failure to grant this posttrial request also violated his constitutional rights ( id. ¶¶ 15-17).
I address Forney's pretrial- and posttrial-demand claims in sequence.
1. Procedural Barriers to the Pretrial Demand Claim
As for the claim predicated on an asserted pretrial demand for "daily copy of the minutes", I note at the outset that the transcript of the April 13, 2004 proceedings, during which the suppression hearing was held and the trial began, evinces no such demand. I am puzzled, therefore, by Forney's insistences that he demanded daily copy at that stage "on record" (Forney Mar. 31, 2005 Aff. Supp. Mot. Pursuant to C.P.L. 440.10 ¶ 5), and that this will be supported by "[h]earing minutes on file" ( id. ¶ 14) the more so because the April 13 transcript, which seemingly refutes this contention, was included in the People's papers opposing Forney's pro se CPL 330.30 motion, has also been furnished in connection with his pending appeal, and thus should by now have been available to Forney twice over.
Forney mistakenly asserts in his motion papers that the pretrial hearing occurred on April 12, 2004 (Forney Mar. 31, 2005 Aff. Supp. Mot. Pursuant to C.P.L. 440.10 ¶ 5; see also id. ¶ 7). As he has recognized in the past (Forney May 13, 2004 Notice of Mot. Aff. Supp. Mot. Pursuant to CPL 330.30 ¶ 5), the hearing in fact occurred April 13, 2004. No proceedings were held in his case on April 12, 2004.
The court will send to Forney with this decision a transcript of the pretrial and trial proceedings of April 13 and 15, 2004, as well as of the proceeding of August 25, 2004, during which his CPL 330.30 motion was denied and he was sentenced.
Three possible explanations suggest themselves, under each of which Forney's motion is procedurally barred:
The first, and to my mind most probable, explanation is that Forney is simply mistaken in contending that he made a pretrial request for a free transcript. On this hypothesis, the record bearing on his claim that he was improperly denied a transcript adequately permits review of his claim in connection with Forney's pending appeal, and CPL 440.10(2)(b) and 440.30(2) therefore mandate summary denial of this prong of his present motion. (Of course, on this hypothesis the claim would also be meritless, since a trial court is not obliged to press upon an indigent defendant a transcript which the defendant himself does not request; summary denial would also therefore be appropriate under CPL 440.30(4)(c) and (d).)
The second hypothesis is that Forney did make a pretrial demand that he be supplied with "daily copy", but is now mistaken in supposing that he did so "on record" having done so instead in some interval during which he was aware that the court reporter was not creating a stenographic record. This seems unlikely, for a trial judge would ordinarily not hear and rule on a defendant's application off-the-record, and Forney does not say this occurred. But in any case, even had it occurred, Forney's failure to place his demand on the record, permitting it to be reviewed in the normal appellate course, would permit summary denial of this prong of his motion pursuant to CPL 440.10(3)(a) and 440.30(2). And I would summarily deny it under these provisions for three reasons:
A. Procedural bars aside, Forney's claim fails on the merits: as I will discuss below, he had no constitutional entitlement, under the circumstances here, to a transcript of the suppression hearing for use at trial, or to "daily copy".
B. Forney has not identified, nor can I perceive, any prejudice to his defense at trial from denial of any transcript demand he might have made. I recognize that where a defendant has been denied a free transcript to which he was constitutionally entitled, the Court of Appeals has frowned on harmless error analysis. See, e.g., Peacock, 31 NY2d at 908; Zabrocky, 26 NY2d at 536. But see United States ex rel. Cadogan v. LaVallee, 428 F.2d 165, 167-68 (2d Cir. 1970). But, as discussed below, Court of Appeals precedent does not support Forney's claim of entitlement here. Thus, I think it allowable to note that the likelihood is vanishingly slight that Forney would have been materially aided in this uncomplicated trial by pretrial access to a transcript of the suppression hearing, which occurred before the very same fact-finder on the morning the trial began; or to "daily copy" of the April 13 proceedings for use during the April 15 court session, particularly since Guginsky, the only witness who testified April 13, completed his testimony that day, and the use of "daily copy" to impeach thus never arose as even a hypothetical possibility. Even if Forney's claim had arguable merit, this absence of apparent prejudice would in my view counsel in favor of permissive summary denial pursuant to CPL 440.10(3) and 440.30(2).
C. It is not the proper function of CPL 440.10 to permit a defendant to relitigate at the trial-court level rulings already made there, in effect using the statute as the basis for collateral attack on decisions by a court of coordinate jurisdiction. As the Appellate Division has written, "the [CPL 440.10] procedure cannot be used as a vehicle for an additional appeal or as a substitute for a direct appeal"; rather, the statute permits a defendant "to inform a court of facts not reflected in the record and unknown at the time of the judgment which, as a matter of law, would undermine the basis of the judgment", creating a remedy when "no other judicial relief is, or ever was, available". People v. Donovon, 107 AD2d 433, 443 (2nd Dep't 1985); see also People v. Degondea, 3 AD3d 148, 156-57 (1st Dep't 2003), appeal denied, 2 NY3d 798 (2004). It would flout this principle to allow Forney to relitigate via CPL 440.10 a claim he has already litigated before the trial court, merely because he did so in a manner inadequate to permit appellate review.
The final hypothesis which would account for Forney's present insistence that he made a pretrial demand "on record" for daily copy is that Forney is correct, and that the court reporter either failed to record colloquy which Forney had reason to believe would be recorded, or has produced a transcript which does not completely reflect the proceedings recorded in her stenographic notes. If so, Forney would be blameless for his inability to litigate his claim on the present state of the appellate record, and CPL 440.10(3)(a) would not apply. But his use of CPL 440.10 as a vehicle to raise the claim would nonetheless be inappropriate.
In this regard, a defendant who blamelessly finds his appellate rights frustrated due to gaps in the appellate record may obtain redress, and pursue an effective appeal, by promptly moving to settle, or reconstruct, an appropriate appellate record in the trial court. See generally People v. Parris, 4 NY3d 41 (2004); People v. Alomar, 93 NY2d 239 (1999); see also 22 NYCRR (R. Practice Sup. Ct., App. Term, 2d 11th Jud. Dists.) 731.1(b)(1) (providing for settlement by trial court of appellate record). Since CPL 440.10 should not substitute for an available appeal, Donovon, 107 AD2d at 443; see also Degondea, 3 AD3d at 156-57, this course, and not the bringing of a CPL 440.10 motion, is the appropriate one when a defendant asserts that the trial court erred in a ruling which, through no fault of his own, does not appear in the appellate record. Indeed, the Appellate Division so held in People v. Williams, 181 AD2d 846 (2nd Dep't 1992), concluding that, where minutes of trial proceedings have been destroyed, a defendant should challenge trial-level rulings by reconstruction and direct appeal, rather than CPL 440.10 attack. If, then, despite a ruling which Forney had reason to believe was "on record", the present record does not reflect it, Forney has chosen an improper method of seeking relief, and I would deny his motion accordingly.
To conclude, no matter what accounts for the discrepancy between Forney's asserted "on record" pretrial transcript demand, and the absence of such a demand in the available record, Forney's claim that he was improperly denied such materials would be rejected without reaching its merits.
2. Merits of the Pretrial Demand Claim
Were I to reach the merits, however, and in doing so, assume the truth of Forney's allegations of fact, I would deny the claim likewise.
Although Forney's papers are not entirely clear, I will construe them, generously, as raising two analytically-distinct arguments regarding the asserted denial of a pretrial transcript request: first, that Judge Saitta erred by not supplying Forney with a transcript of the April 13, 2004 suppression hearing in advance of the trial begun later that day; and, second, that the judge erred by not supplying him with "daily copy" of the April 13 proceedings (comprising both suppression and trial testimony) for use at the April 15 session of the trial. I address these claims in turn.
Forney's claim that the court erred by denying him a hearing transcript for use at trial fails at the threshold due to Forney's failure to assert that he demanded such a transcript before the suppression hearing ended. In this regard, the Court of Appeals set forth in People v. Sanders, 31 NY2d 463, 466-67 (1973), a bright-line rule requiring that a defendant who wishes to obtain a hearing transcript for use at trial must demand such a transcript before the hearing concludes. The Court noted the continued vitality of this rule in Matter of Dwayne R., a companion case to Matter of Eric W., 68 NY2d 633, 636 (1986). Forney, however, asserts merely that he demanded the transcript "EITHER immediately prior or immediately after [the suppression] hearing" (Forney Mar. 31, 2005 Aff. Supp. Mot. Pursuant to C.P.L. 440.10 ¶ 5) (emphasis in original). At best, then, he speculates, but does not assert, that he made a demand which met the Sanders timeliness criterion. This alone warrants summary denial of his motion pursuant to CPL 440.30(4)(a) and (b).
I have discussed supra the factors which support discretionary summary denial of Forney's motion pursuant to CPL 440.30(4), and will not repeat them here or at other points at which I conclude that discretionary summary denial of Forney's transcript claims is warranted.
In any case, Forney overlooks a further distinction between his claim and those upheld in cases such as Zabrocky, West, and Peacock, upon which he relies (Forney Mar. 31, 2005 Aff. Supp. Mot. Pursuant to C.P.L. 440.10 ¶¶ 12-13). In those cases, the defendants requested hearing transcripts for use in connection with trials which were to begin on later dates. Forney's trial, however, began the same day as the hearing itself — indeed, the hearing witness, Officer Guginsky, completed his trial testimony that day. Under these circumstances, barring an adjournment of the trial, not even a wealthy defendant could have obtained a hearing transcript in advance of trial from the court reporter, who, after all, was needed in the courtroom throughout the day. As the Court of Appeals held in Eric W., 68 NY2d at 635-36, an indigent defendant has no entitlement to receive a hearing transcript before trial in such a case. At the least, then, Forney errs insofar as he asserts that he should have been supplied with a transcript of the suppression hearing prior to the trial portion of the April 13, 2004 proceedings. To the extent that his motion rests on this theory, summary denial pursuant to CPL 440.30(4)(a) is appropriate.
To be sure, Forney's argument, to the extent that it suggests an entitlement to receive a transcript prior to the April 15, 2004 session, may arguably be distinguished from those addressed in Eric W. in one respect: while Forney's trial began the day of the hearing, it was not completed until a later date; by contrast, the respondents' fact-finding hearings in Eric W., so far as the Court's memorandum reflects, not only began but ended on the days their suppression hearings were conducted. An indigent defendant might argue that if his trial begins the day of the hearing, but is not completed that day, he ought to be provided with a hearing transcript in the interval between the trial's first and subsequent days to assist him in connection with those later proceedings. Cf. Peacock, 31 NY2d at 908-09 (indigent defendant entitled to transcript of pretrial suppression hearing notwithstanding that trial was to begin the next day); West, 29 NY2d at 729 (similar). But even setting to one side the other bars to relief described above, I would reject such a claim if advanced by Forney for two reasons.
First, Forney does not suggest that he asserted this theory before Judge Saitta. Rather, by Forney's own account, he simply demanded "a daily copy of the minutes" (Forney Mar. 31, 2005 Aff. Supp. Mot. Pursuant to C.P.L. 440.10 ¶ 5). Such a demand would naturally have been interpreted as one that the court direct transcription for Forney's benefit of all proceedings pretrial and trial for Forney's use on the next court day. Thus, it would not have been specific enough to focus the trial judge's attention on the narrower theory of entitlement to the hearing transcript alone which I consider here. Cf. People v. Jacquin, 71 NY2d 825 (1988) (overbroad protest did not fairly present narrower position later asserted as basis for relief); People v. Tutt, 38 NY2d 1011 (1976) (same); see also People v. Payne, 88 NY2d 172, 182 n. 1 (1996). Indeed, the First Department has held, albeit without discussing the pertinent facts in its memorandum, that a defendant's demand at a suppression hearing for daily copy does not preserve for appellate review a narrower claim of entitlement to a transcript of the hearing for use at trial. See People v. Rodriguez, 250 AD2d 381 (1998). Claims defaulted by inadequate presentation before the trial court provide no basis for CPL 440.10 relief. See People v. Mower, 97 NY2d 239, 245-46 (2002); People v. Keebler, 15 AD3d 724, 727 (3rd Dep't), appeal denied, 4 NY3d 854 (2005); Donovon, 107 AD2d at 442-44. This alone would dispose of any claim based here on the theory that Forney was entitled to a transcript of the pretrial hearing for use in connection with the April 15, 2004 portion of the trial.
In any event, had Forney fairly presented such a theory to Judge Saitta, the court would correctly have rejected it.
In that regard, Eric. W. has not been limited in the manner considered here. In particular, the trial which led to the convictions considered in People v. Harris, 224 AD2d 712 (2d Dep't 1996), and People v. Morgan, 224 AD2d 720 (2nd Dep't 1996), spanned multiple days following the conclusion of the pretrial suppression hearing, a fact of which I take judicial notice. Nonetheless, the Appellate Division, citing Eric W., concluded that these defendants were not improperly denied free hearing transcripts. Harris, 224 AD2d at 712; Morgan, 224 AD2d at 720.
Further, Eric W. would not be correctly distinguished along the lines discussed here unless the hearing transcript might have aided Forney in litigating the April 15, 2004 stage of the trial. After all, where free hearing transcripts are required to be provided, the rationale is that they may help defendants prepare for trial and impeach hearing witnesses who testify at trial. See generally Britt v. North Carolina, 404 U.S. 226, 227-28 (1971); People ex rel. Cadogan v. McMann, 24 NY2d 233, 235 (1969). True, an indigent defendant who complains that he was denied such a transcript for use at a trial scheduled to begin on a future date need not specifically show how the transcript might have aided him, at least where one or more hearing witnesses testified at trial. See, e.g., Sanders, 31 NY2d at 466; Peacock, 31 NY2d at 908; West, 29 NY2d at 729; cf. Britt, 404 U.S. at 228 (Supreme Court has "consistently recognized the value to a defendant of a transcript of prior proceedings, without requiring a showing of need tailored to the facts of the particular case"). But in Forney's case, not only did the trial begin the day of the suppression hearing, but the hearing witness finished his trial testimony that day also. Under these circumstances, I am at a loss to know how Forney might have benefitted from access to a hearing transcript in litigating the April 15 session of the trial. Certainly such a transcript would have been less likely to benefit him than daily copy of the April 13 trial testimony. However, indigent defendants are not automatically entitled to free daily copy of trial proceedings. See People v. Abdullah, 23 NY2d 676 (1968); see also Zabrocky, 26 NY2d at 536 (construing Abdullah); People v. McMahon, 275 AD2d 670 (1st Dep't 2000); United States v. Sliker, 751 F.2d 477, 489-92 (2d Cir. 1984). A fortiori, Forney could not have been entitled to a free hearing transcript on the theory considered here. Were I to entertain it, therefore, I would summarily reject it pursuant to CPL 440.30(4)(a).
I now turn to the analytically-distinct claim that, irrespective of whether Forney was entitled to receive a transcript of the suppression hearing before beginning the trial, he was entitled to free "daily copy" of all the April 13 proceedings, hearing and trial alike, before the trial's April 15 concluding session. And notwithstanding that the April 15 proceedings took place two days after the April 13 session, production of an April 13 transcript in time for use on April 15 would indeed, as Forney's terminology implies (Forney Mar. 31, 2005 Aff. Supp. Mot. Pursuant to C.P.L. 440.10 ¶ 5), have entailed the production of "daily" copy, see 22 NYCRR (R. Ch. Adm'r Cts.) 108.2(b)(2)(ii), (iii), with its attendant public expense, see Judiciary Law § 302(1), (2); Alweis v. Evans, 69 NY2d 199, 206 (1987). Were I to reach such a daily-copy claim by Forney, I would reject it in short order.
Indigent defendants, as noted, are not automatically entitled to free daily copy. After all, "[c]ommon experience informs us that it is entirely practicable to present an effective defense in a criminal case without daily copy, however convenient daily copy undoubtedly is". Sliker, 751 F.2d at 491. Rather, the decision whether to direct transcription of daily copy for an indigent defendant is committed to the trial court's discretion. See McMahon, 275 AD2d at 670; Sliker, 751 F.2d at 492. Judge Saitta would by no stretch of the imagination have abused his discretion by denying any such demand here.
Simply put, the prospect that daily copy could have helped Forney mount his defense was almost nonexistent. The suppression hearing and trial spanned less than two court days, and the straightforward factual allegations concerned matters about which Forney concededly had first-hand knowledge. The court's worksheet reflects that the People provided Forney with open-file discovery on February 26, 2004, one and one-half months before the trial began, and Forney obtained, prior to the pretrial suppression hearing, a transcript of the arresting officer's pertinent testimony at a parole-violation hearing (Apr. 13, 2004 Procs. at 19-21). Thus, little that occurred during the trial could have surprised Forney, and he would hardly have needed daily copy to help assimilate the ongoing events. Further, given the brevity of the proceedings, and the fact that one court reporter took the minutes of the suppression hearing and the trial, it would have been a simple matter to read back portions of the April 13 proceedings during the April 15 court session, cf. People v. Jones, 234 AD2d 16 (1st Dep't 1996), particularly since there was no need in the context of Forney's bench trial to take into account the reactions or convenience of jurors. Of course, no one thought this necessary unsurprisingly, since the trial judge (also the fact-finder) had heard the April 13 testimony as well, and the sole April 13 witness, Guginsky, did not testify on April 15, ruling out use of the April 13 testimony for impeachment. Finally, Forney does not assert that the People created an imbalance of resources by ordering daily copy, and there is no reason to suppose they did, unusual as that would have been in a routine misdemeanor prosecution such as this one.
For these reasons, even had Forney made a pretrial demand for daily copy, Judge Saitta would have correctly denied it. This aspect of Forney's pretrial transcript-demand claim should be summarily denied pursuant to CPL 440.30(4)(a).
3. The Posttrial Demand Claim
Forney complains too that Judge Saitta acknowledged, yet ignored, his posttrial motion that he be supplied with a transcript of the suppression hearing and trial (Forney Mar. 31, 2005 Aff. Supp. Mot. Pursuant to C.P.L. 440.10 ¶¶ 8-9, 15-16), which he asserts he needed due to "an upcoming final parole revocation hearing" ( id. ¶ 15). Consistent in part with Forney's assertions, the court file contains a motion by him, dated May 25, 2004, requesting such a free transcript pursuant to CPLR 1101 and 1102; the motion does not further specify the purpose for which the transcript was sought. Forney has not said precisely when Judge Saitta acknowledged receiving this motion. Conceivably the judge mentioned it at one of the postverdict calendar calls which took place prior to the August 25, 2004 proceeding at which he denied Forney's CPL 330.30 motion and imposed sentence. Neither the judge nor Forney mentioned it at that proceeding.
Puzzlingly, as noted above, the People supplied a complete transcript of the hearing and trial in their July 9, 2004 response to Forney's CPL 330.30 motion to set aside the verdict. Forney should have received the transcript at that point, apparently mooting his complaint that the trial court failed to rule on his May 25 motion. In any case, even assuming that the transcript was not then served on Forney, his complaint must now be summarily rejected for several reasons.
First, as with Forney's complaint about the supposed pretrial transcript denial, the papers and colloquy relied on to support this complaint either appear in the appellate record, or could have been made to appear there by appropriate prejudgment efforts or postjudgment settlement or reconstruction proceedings. On the first or third hypothesis, summary denial of his present claim is mandatory pursuant to CPL 440.10(2)(b) and 440.30(2); on the second, summary denial is appropriate pursuant to CPL 440.10(3)(a) and 440.30(2) for reasons stated supra in addressing the discretionary reasons for denying Forney's pretrial-demand claim.
Moreover, Forney's reliance in his May 2004 motion papers on CPLR 1102 would have suggested that he sought the transcript simply for the purpose of taking an appeal. Of course, an indigent criminal defendant who wishes to perfect an appeal, and obtain a free transcript for that purpose, must make the request in the appropriate appellate court. CPL 460.70(1). Judge Saitta would not have been remiss, therefore, in declining to grant relief based on Forney's apparent jumping of the gun in seeking an appellate transcript from him. And since Forney's appeal is going forward unimpeded before the Appellate Term, Forney has no complaint on that score. Further, even Forney himself does not assert that he gave the trial judge any other explanation for his needing a transcript posttrial; thus, he has defaulted any claim that the judge should have gotten him one for some other purpose, see Mower, 97 NY2d at 245-46. Indeed, since Forney does not assert that Judge Saitta denied his motion, but merely complains that the judge neglected it, and since Forney does not say that he brought this omission to the trial judge's attention, his demand should be considered to have been abandoned, and his claim of error defaulted on that ground as well. See, e.g., People v. Santos, 14 AD3d 316 (1st Dep't), appeal denied, 4 NY3d 856 (2005); People v. Fortin, 289 AD2d 590 (2nd Dep't 2001); People v. Rivera, 257 AD2d 425 (1st Dep't 1999).
Procedural barriers aside, Forney does not assert that his posttrial demand should have been granted for any other purpose than to assist him at an upcoming final parole revocation hearing. I need not consider whether an indigent parolee would be entitled to such a transcript for that purpose. If such a claim implicated the validity of Forney's judgment of conviction, it either could be raised, or could have been raised had appropriate efforts been made, in his pending appeal, and would be denied here under CPL 440.10(2)(b) and (3)(a), and CPL 440.30(2). In any case, Forney does not assert that he made this argument before Judge Saitta, and his May 2004 papers do not suggest it; thus, it has been defaulted. See Mower, 97 NY2d at 245-46. Finally, CPL 440.10 permits vacatur of judgments exclusively on the grounds provided in CPL 440.10(1), see People v. Machado, 90 NY2d 187, 192 (1997), all of which involve either defect in the proceedings leading to the judgment or doubts about the defendant's guilt. Forney's complaint that the denial of a transcript prejudiced his ability to defend against a parole-violation charge states no claim under CPL 440.10(1), and therefore merits summary denial under CPL 440.30(4)(a).
C. The Jury Waiver Argument
Forney next attacks his conviction on the theory that Judge Saitta did not question him in a manner sufficient to establish that his waiver of a jury trial was proffered knowingly and intelligently. Strikingly, Forney does not assert that the waiver itself was anything other than knowing, intelligent, and voluntary; his claim is the exclusively procedural one that the trial court failed to solicit adequate assurances that this was so (Forney Mar. 31, 2005 Aff. Supp. Mot. Pursuant to C.P.L. 440.10 ¶¶ 3, 6, 18-22). Since the appellate record would have permitted Forney to raise this claim in his pending appeal, I may not review it here. In any case, the claim has been dispositively defaulted, for present purposes, due to Forney's failure to raise it preverdict. Finally, if its merits were reached, it would fail.
To begin, the legal adequacy of the procedures by which the jury-trial waiver was accepted may be evaluated on the prejudgment record. Indeed, Forney himself relies exclusively on that record in his present papers, and it was a postulate of his presentence motion to set aside the verdict on the same theory that the ground "appear[s] in the record" and would "require a reversal . . . of the judgment as a matter of law by an appellate court", CPL 330.30(1). True, the Court of Appeals has suggested that a defendant complaining of an unknowing or involuntary jury-trial waiver should substantiate his claim "by facts outside the trial record in a proceeding maintainable under CPL 440.10". People v. Johnson, 51 NY2d 986 (1980); see also People v. Magnano, 77 NY2d 941 (1991) (aff'g on mem. at 158 AD2d 979). But Forney does not assert that facts outside the appellate record show that his waiver was unintelligent or involuntary; rather, he claims simply that the trial judge created an inadequate record a record-based claim if there ever was one. Forney, then, is similarly situated to a defendant who asserts that he entered a plea of guilty without the court's having conducted a sufficient allocution. Since the record permits such claims to be raised on appeal, CPL 440.10(2)(b) bars 440.10 relief. People v. Cooks, 67 NY2d 100 (1986); see also People v. Angelakos, 70 NY2d 670, 671-73 (1987); People v. Maynor, 177 AD2d 602 (2nd Dep't 1991); cf. Bousley v. United States, 523 U.S. 614, 621 (1998) (claim of defective guilty plea allocution procedurally defaulted due to failure to raise claim on direct appeal). By parity of reasoning, Forney's claim must be summarily denied pursuant to CPL 440.10(2)(b) and 440.30(2).
Further, Forney's claim would in any event be rejected on the ground that he defaulted it before the trial court. Johnson is dispositive. In Johnson, as here, the defendant faulted the trial judge for accepting a jury-trial waiver which counsel proffered on his behalf "without questioning [the defendant] to determine whether his waiver was knowing and voluntary". 51 NY2d at 987 (reporter's syllabus). Such a claim, the Court held, is one that must be preserved by appropriate protest in the trial court. Id. The Court reiterated this view in Magnano, 77 NY2d at 942 (aff'g on mem. at 158 AD2d 979). And the Appellate Division has adhered to it repeatedly.
See, e.g., People v. Lumpkins, 11 AD3d 563 (2nd Dep't), appeal denied, 4 NY3d 746 (2004); People v. Dunston, 297 AD2d 820, 820 (2nd Dep't 2002); People v. Pelaccio, 159 AD2d 734, 735 (2nd Dep't 1990).
Johnson's holding necessarily implies that a defendant must make his jury-waiver complaint prior to the verdict. After all, the contemporaneous-protest law enforced in Johnson requires that trial judges be given "effective" opportunities to avoid or cure error. CPL 470.05(2). Under that provision, therefore, an error which will infect the validity of a verdict must as a rule be protested during the trial, when it can "readily . . . be corrected". People v. Robinson, 36 NY2d 224, 228 (1975); see also, e.g., People v. Robinson, 88 NY2d 1001 (1996); Peter Preiser, Practice Commentaries, McKinney's Cons. Laws of NY, Book 11A, CPL 470.05, at 12 (1994) ("while there is still time to correct the error"). Where a judge has committed procedural error in accepting a jury waiver, an opportunity "readily" to correct the error may be presented if the judge is informed of the error during the trial, for a defendant may still waive his right to a jury trial after his trial begins, see People v. Thomas, 292 AD2d 550 (2nd Dep't 2002); People v. Jones, 178 AD2d 244 (1st Dep't 1991), and any error in beginning a nonjury trial without a proper jury waiver may be cured by securing one as the trial proceeds, see People v. Satcher, 144 AD2d 992, 992 (4th Dep't 1988); People v. Kravitz, 140 AD2d 972 (4th Dep't 1988); People v. Caldwell, 107 Misc 2d 62, 65-66 (App. Term 1st Dep't 1980). By contrast, a posttrial protest will simply invite a burdensome retrial which timely protest might have obviated precisely the result sought to be avoided by the preservation rule applied in Johnson.
Here, Forney made no challenge to the procedures incident to his jury-trial waiver until his May 2004 motion to set aside the verdict pursuant to CPL 330.30(1). As discussed, this was too late. Nor did the CPL 330.30 motion of its own force overcome the default arising from Forney's failure to advance his claim earlier. Such a motion may not allege an unpreserved claim of preverdict error, see People v. Everson, 100 NY2d 609 (2003); People v. Albert, 85 NY2d 851 (1995); People v. Guerrero, 69 NY2d 628 (1986) (rev'g on dissenting mem. at 111 AD2d 350, 355-56), and does not revive for subsequent question-of-law review a claim already defaulted for lack of preverdict protest, see People v. Harris, 98 NY2d 452, 492 (2002); People v. Laraby, 92 NY2d 932 (1998); People v. Padro, 75 NY2d 820 (1990).
As noted in connection with Forney's transcript-demand claims, a defendant may not assert as the basis for CPL 440.10 relief a claim procedurally defaulted during prejudgment proceedings. People v. Mower, 97 NY2d 239, 245-46 (2002); People v. Keebler, 15 AD3d 724, 727 (3rd Dep't), appeal denied, 4 NY3d 854 (2005); People v. Donovon, 107 AD2d 433, 442-44 (2nd Dep't 1985). On this ground, too, Forney's jury-waiver claim must be summarily denied.
Finally, Forney's claim would fail even if its merits were reached. In this regard, a defendant may waive his constitutional right to a jury trial and agree to be tried by the court alone. Adams v. United States ex rel. McCann, 317 U.S. 269, 275-78 (1942). Indeed, the New York Constitution has since 1937 conferred upon non-capital criminal defendants the right to do just that. NY Const., art. I, § 2. Under that provision, and implementing legislation, see CPL 320.10(2), a defendant must exercise his waiver by signing a writing in open court in the judge's presence. If these prerequisites are met, a New York trial court must approve the waiver unless it is sought for impermissible procedural advantage, or it appears that the defendant is not "fully aware of the consequences of the choice he is making". People v. Duchin, 12 NY2d 351 (1963); see also People ex rel. Rohrlich v. Follette, 20 NY2d 297, 299-301 (1967).
Forney supposes that there exists a constitutional requirement not only that a defendant execute a writing in the judge's presence in open court (as he concedes occurred here, Forney Mar. 31, 2005 Aff. Supp. Mot. Pursuant to C.P.L. 440.10 ¶¶ 6, 20), but that the judge question the defendant as well, to assure that his waiver is knowing and voluntary. However, at least since the Supreme Court's decision in McCann, the question whether a defendant waiving a jury trial is "competent to exercise an intelligent, informed judgment" has not been governed by "delusively simple rules of trial procedure which judges must mechanically follow", 317 U.S. at 277. In particular, there is no absolute allocution requirement of the sort presupposed by Forney. People v. Butler, 17 AD3d 379 (2nd Dep't), appeal denied, 5 NY3d 760 (2005); People v. Terrell, 277 AD2d 931 (4th Dep't 2000); People v. Medina, 202 AD2d 256 (1st Dep't 1994); People v. Simmons, 182 AD2d 1018, 1019 (3rd Dep't 1992); People v. Burnett, 136 AD2d 888 (4th Dep't 1988); People v. Dominy, 116 AD2d 851, 852 (3rd Dep't 1986); Marone v. United States, 10 F.3d 65, 67 (2d Cir. 1993).
People v. Davidson, 136 AD2d 66 (2nd Dep't 1988), heavily relied on by Forney, is not to the contrary. In Davidson, the record failed to support the conclusion that the waiver was signed in open court. Indeed, neither the defendant, his lawyer, nor the judge mentioned it before the trial began, the clerk simply noting that "the jury waiver has already been signed". 136 AD2d at 68-70. Of course, this breach of constitutional and statutory procedures mandated vacatur of the judgment. Id. at 70. To be sure, the Appellate Division criticized the trial judge also for undertaking no inquiry to insure that Davidson's waiver was proffered knowingly and intelligently. Id. But this criticism must be understood against the troubling backdrop not only of the trial judge's seeming inattention, but the defendant's unrebutted postjudgment assertion, id. at 67, that he had signed the waiver at his attorney's insistence, without being told its significance. That Davidson did not intend to mandate a rigid allocution requirement in all circumstances is plain from the Court's more recent decision in Butler, which distinguished Davidson on the ground that the waiver in Butler, although not the subject of judge-defendant colloquy, "was executed in open court", and that "the surrounding circumstances support the conclusion that [the] waiver was knowing and voluntary". 17 AD3d at 380. Under those circumstances, Butler held, the mere absence of colloquy will not open such a waiver to postverdict attack. Id.
Butler did not mark a shift in Second Department law. In both People v. Jones, 293 AD2d 627 (2nd Dep't 2002), and People v. Dunston, 297 AD2d 820 (2nd Dep't 2002), a reading of the appellate briefs reveals that the trial judges accepted jury-trial waivers without engaging in colloquy with the defendants. Nonetheless, the Appellate Division turned away challenges to the procedural adequacy of the waivers, in both cases relying on holdings in other departments that such colloquy is not indispensable. Jones, 293 AD2d at 627-28 (citing Fourth Department's holding in Terrell); Dunston, 297 AD2d at 820 (citing Third Department's holding in Simmons, and Fourth Department's in Burnett).
Here, a review of the "surrounding circumstances" made amply clear to the trial judge, as they do to myself, that Forney's proffered waiver was knowing and voluntary.
Even before the jury waiver came up, Forney and his attorney explained that Forney had studied the law while in prison, and let the trial court know that the prison term had arisen from Forney's conviction after a recent jury trial (Apr. 13, 2004 Procs. at 2-3; see People v. Forney, 303 AD2d 763 (2nd Dep't 2003)). As Judge Saitta well knew, therefore, it would have been unnecessary to tell Forney about the incidents of a jury trial before accepting his waiver — he had experienced them firsthand.
By the time Forney proffered the waiver, he had been allowed to defend pro se. But there is nothing anomalous about a pro se defendant's electing a bench trial, which may offer distinctive advantages to pro se defendants, McCann, 317 U.S. at 278; hence, this gave no cause for concern. In any case, Forney explained that he had reached his decision to waive a jury after speaking with his standby counsel (Apr. 13, 2004 Procs. at 37-38), a further reassurance to the court that he knew the consequences of his decision and the nature of the right he would be surrendering. See Butler, 17 AD3d at 380; People v. Walker, 293 AD2d 319, 320 (1st Dep't 2002); Simmons, 182 AD2d at 1019; Burnett, 136 AD2d at 888.
And after the lunch recess, when the trial court addressed Forney directly, Forney again assured the court that he wished to waive a trial by jury. Indeed, Forney himself at this point preemptively took the lead in seeing to it that his waiver was reduced to writing (Apr. 13, 2004 Procs. at 40-41) aptly corroborating his asserted legal knowhow. In sum, all the "surrounding circumstances support[ed] the conclusion that [the] waiver was knowing and voluntary", Butler, 17 AD3d at 380. Judge Saitta therefore properly approved it without more ado.
To conclude, Forney's jury-waiver claim would fail on the merits even if reached. There is every reason for confidence that his waiver of a jury trial was intelligent, he does not contend otherwise, and the procedures leading to it were adequate to show as much. Summary denial of his motion on this score is therefore appropriate pursuant to CPL 440.30(4)(a).
D. Conclusion
I have reviewed each of Forney's claims, construing his allegations in the light most favorable to him. Summary denial of each of them is appropriate on multiple grounds.
His motion is therefore denied.
IT IS SO ORDERED.