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People v. Montgomery

Court of Appeals of the State of New York
Dec 30, 1966
18 N.Y.2d 993 (N.Y. 1966)

Summary

In People v Montgomery (18 N.Y.2d 993, supra) the court ruled that an indigent defendant is entitled to a free transcript of a preliminary hearing.

Summary of this case from People v. Caban

Opinion

Argued November 29, 1966

Decided December 30, 1966

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, J. IRWIN SHAPIRO, J.

Gretchen White Oberman and Anthony F. Marra for appellant.

Nat H. Hentel, District Attorney ( Benj. J. Jacobson of counsel), for respondent.


MEMORANDUM. Judgment reversed and case remitted to the Supreme Court, Queens County, for new trial. The State is to make available to defendant a transcript of the preliminary hearing.

When the State constitutionally or statutorily affords a defendant a right, the exercise thereof cannot be conditioned upon the defendant's ability to pay ( People v. Hughes, 15 N.Y.2d 172; People v. Pride, 3 N.Y.2d 545; Long v. District Ct. of Iowa, 358 U.S. 192; Lane v. Brown, 372 U.S. 477; Douglas v. California, 372 U.S. 353; Gideon v. Wainwright, 372 U.S. 335; Griffin v. Illinois, 351 U.S. 12). Section 206 of the Code of Criminal Procedure provides that, where a preliminary examination was held and testimony recorded, the Magistrate or his clerk must, "on payment of his fees", within two days after demand, furnish the defendant or his attorney a copy of the statement taken at the hearing. There is no doubt that section 206 affords one who is capable of paying for it an absolute right to a transcript of the preliminary hearing. Thus, the State cannot, consonant with the equal protection clause of the State and Federal Constitutions, deny a defendant, prior to trial, access to a transcript of a preliminary hearing because of his inability to pay (cf. People v. Jaglom, 17 N.Y.2d 162, 165). We hold, therefore, that when a defendant requests a transcript and when that request is accompanied by an affidavit of indigency, the State must honor that request. We add one caveat. The request for a transcript should be made far enough in advance of trial to give the State a reasonable amount of time to transcribe the minutes and to avoid the necessity of suspending the trial pending the production of the transcript.

Chief Judge DESMOND and Judges FULD, VAN VOORHIS, BURKE, SCILEPPI, BERGAN and KEATING concur.

Judgment reversed and a new trial ordered.


Summaries of

People v. Montgomery

Court of Appeals of the State of New York
Dec 30, 1966
18 N.Y.2d 993 (N.Y. 1966)

In People v Montgomery (18 N.Y.2d 993, supra) the court ruled that an indigent defendant is entitled to a free transcript of a preliminary hearing.

Summary of this case from People v. Caban

In People v Montgomery (18 N.Y.2d 993), which involved the issue of providing the transcript of a preliminary examination under section 206 of the Code of Criminal Procedure, the court held that the request of defendant for a transcript, accompanied by an affidavit of indigency, that the State must honor that request.

Summary of this case from People v. Powell

In Montgomery, the defendant was denied a copy of the minutes of a preliminary hearing which were necessary and pertinent to his defense while the same minutes by statute would have been available to him as a defendant if he was able to pay for them.

Summary of this case from People v. Palmieri
Case details for

People v. Montgomery

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. BREWSTER LEE…

Court:Court of Appeals of the State of New York

Date published: Dec 30, 1966

Citations

18 N.Y.2d 993 (N.Y. 1966)
278 N.Y.S.2d 226
224 N.E.2d 730

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