People v Velasquez

[*1] People v Velasquez 2009 NY Slip Op 50199(U) [22 Misc 3d 1120(A)] Decided on February 10, 2009 Supreme Court, Kings County Lewis, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 10, 2009
Supreme Court, Kings County

The People of the State of New York, Plaintiff,

against

Martin Velasquez, Defendant.



6808/99



Plaintiff Attorney:DA Office

Defendant AttorneyMartin Velasquez - Pro se

Yvonne Lewis, J.

Mr. Martin Velasquez, appearing pro-se, has petitioned this court, pursuant to CPLR 1101(b) and 1102, and Section 91 of the Criminal Court Act (sic), for an order directing that he be furnished with a copy of the stenographic transcripts of his June 7, 2000 sentencing minutes, without costs, fees or expenses. Mr. Velasquez asserts that he is presently incarcerated at the Otis Bantum Correctional Center of the Rikers Island Prison Complex, that he needs the said transcript to confirm the length of his sentence, and that he is unable to pay the costs, fees, and expenses of procuring said transcripts since he has no income whatsoever, owns no property, and has no savings.

The prosecution opposes Mr. Velasquez.'s motion on the grounds that 1. CPLR Section 1101 only permits the court in which an action is triable, or to which an appeal has been or will be taken, to grant permission to proceed as a poor person. Hence, inasmuch as Mr. Velasquez was convicted upon his guilty plea and sentenced herein, this court cannot grant his request; 2. Mr. Velasquez has submitted insufficient proof of his indigence; 3. Mr. Velasquez already appealed his conviction to the Appellate Division, which affirmed the same; and, 4. Mr. Velasquez has not demonstrated that the subject transcript is needed for any non-frivolous collateral attack of his conviction, pursuant to CPL 440.10.

The law in this area is clear. Once an accused has been sentenced, the court's adjudicatory powers cease vis-a-vis the criminal action, except as explicitly authorized by statute (see Peo. v. Stevens, 91 NY2d 270 and Peo. v. Torres, 185 Misc 2d 108). In addition, part of the required documentation to establish indigence is a defendant's prison trust account statement, which Mr. Velasquez has neglected to include in his moving papers (see Gomez v. Evangelista, 185 Misc 2d 816; also Gomez v. Evangelista, 290 AD2d 351, 736 NYS2d 365 [rational basis exists for fifteen dollar filing fee). Finally, an accused only has a constitutional right to a free transcript in order to effectuate his right of first appeal (See Griffin v. Illinois, 351 US 12); however, for a post-judgment motion, he must demonstrate a need therefor to resolve non-frivolous issues (See US v. Losing, 601 F2d 351; US v. MacCollom, 426 US 317; and Crossley v. US, 538 F2d 508), which Mr. Velasquez has failed to establish.

WHEREFORE, on the basis of the foregoing, it is now ORDERED, that Mr. Velasquez's requests for poor person status and for a copy of his sentencing minutes is denied without [*2]prejudice

ENTER:

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JSC