Defendant has submitted a second application1 to proceed as poor person, pursuant to CPLR §1101, seeking an order from this Court to allow him to obtain the transcripts of his pre-trial, trial, and sentencing proceedings. The People have submitted an affirmation in opposition. A Sullivan County jury convicted the Defendant, after trial on May 21, 2015, of one (1) count) of Predatory Sexual Assault Against a Child in the First Degree pursuant to PL §130.96/130.75(1)(b), a Class A-II felony, and twenty-two (22) counts of Rape in the Second Degree pursuant to PL §130.30(1), a Class D felony. The Court sentenced the Defendant to twenty-five (25) years to life of incarceration for the one (1) count of Predatory Sexual Assault Against a Child in the First Degree, and seven (7) years of incarceration plus ten (10) years of post-release supervision for the twenty-two (22) counts of Rape in the Second Degree, to run concurrently to one another and consecutively to the sentence for Predatory Sexual Assault Against a Child in the First Degree, plus fines, surcharge, and a permanent Order of Protection for the victim. This results in an aggregate sentence of thirty-two (32) years to life of incarceration plus ten (10) years of post-release supervision.The Defendant was assigned appellate counsel and perfected an appeal to the Appellate Division, Third Department. The Defendant’s appellate counsel was provided with a complete copy of all transcripts related to the Defendant’s case in order to perfect the appeal. In his appeal, the Defendant claimed that his convictions were not supported by legally sufficient evidence and were against the weight of the evidence, that the People’s case was premised almost entirely on the victim’s unreliable testimony, that the police investigation was inadequate, that the People failed to present any forensic proof at trial, and that this Court improperly denied the Defendant’s untimely request for a missing witness charge. The Appellate Division, Third Department affirmed all elements of the Defendant’s conviction. People v. Chaneyfield, 157 AD3d 996 (3d Dept 2018), lv. denied 31 NY3d 1012 (Ct App 2018).The Defendant now seeks permission to proceed as a poor person in order to obtain copies of the transcripts of his pre-trial, trial, and sentencing proceedings “to continue to pursue my conviction with a [CPL] 440.10 motion, writ error coram nobis and Habeaus [sic] corpus.”Defendant’s application must be denied. “A criminal defendant has no absolute right to a free copy of trial transcripts.” People v. Stroman, 16 Misc 3d 749, 750 (Sup. Ct. Kings Co. 2007). See also, U.S. v. MacCollom, 426 US 317 (1976); Crossley v. U.S., 538 F2d 508 (2d Cir. 1976). A trial court has no authority to grant such relief “where there is no triable action pending before the court and the court is not an appellate court.” People v. Toribio, 2011 NY Slip Op 33488U (Sup. Ct. Kings Co. 2011).If an appellate court has granted a defendant poor person status to pursue an appeal, and the transcripts are necessary for that purpose, then it is the appellate court that shall furnish the defendant with transcripts or a fee waiver, not the trial court. CPL §460.70; Stroman, supra. Moreover, “where a party has been permitted by order to appeal as a poor person…, the court clerk shall deliver [one transcript] to the poor person or his attorney.” CPLR §1102(b), emphasis added. A defendant is entitled to transcripts at no cost for appeal purposes only, not for other collateral matters such as post-conviction motions.In the instant matter, the Defendant previously perfected an appeal and his appellate attorney was provided copies of all transcripts related to the Defendant’s criminal case. As such, the provisions of CPLR §1102(b) were previously satisfied. Whether appellate counsel is able, or even authorized as appointed counsel, to make copies of said transcripts for Defendant, is a matter between the Defendant and his appellate attorney.If Defendant wishes to submit a supplemental appellate brief, he should make application to the appellate court for a copy of his transcripts, or for a waiver of fees or costs associated with his attorney providing copies to him. Stroman, supra. This Court cannot and will not grant such relief.Based on the foregoing, it isORDERED that Defendant’s application for poor person status to obtain copies of his trial proceeding transcripts is denied.This shall constitute the decision and order of this Court.DATED: January 3, 2019Monticello, New York
