People v. Montgomery

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 indi-gency, the State must honor that request. We add one caveat. The request for a transcript should be made far enough in

Chief Judge Desmond and Judges Fuld, Van VooRhis, Busks, Scileppi, Bergan and Keating concur.

Judgment reversed and a new trial ordered.