People v Bogle

[*1] People v Bogle 2007 NY Slip Op 52252(U) [17 Misc 3d 1134(A)] Decided on November 27, 2007 Supreme Court, Bronx County Dawson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 27, 2007
Supreme Court, Bronx County

People of State of New York,

against

Maxwell Bogle, Defendant.



4934/1996

Joseph J. Dawson, J.

On May 4, 1999, after a jury trial, defendant Maxwell Bogle ("Bogle") was sentenced to an aggregate term of from fifty years to life for, inter alia, the crimes of Kidnaping in the First Degree, Rape in the First Degree (3 counts), and Sodomy in the First Degree. Bogle's conviction and sentence were affirmed on direct appeal under the name People v. Ellis, 305 AD2d 208 (1st Dept. 2003), and leave to appeal to the Court of Appeals was denied. People v. Bogle, 100 NY2d 579 (2003). Thereafter, Bogle petitioned for a federal writ of habeas corpus, which was also denied. Bogle v. Zon, 2007 WL 2049886 (S.D.NY Jul. 17, 2007). Bogle filed a notice of appeal from this determination, but no certificate of appealability was issued by the United States District Court. See Affidavit of ADA Bari Kamlet sworn to November 8, 2007, at Exhibit 2. Bogle now moves the Court for an order granting him temporary use of the trial transcript (or the provision of a free copy of said transcript) due to his purported indigence in connection with his alleged plan to file a motion pursuant to Article 440 of the Criminal Procedure Law. For the reasons set forth below, Bogle's motion is denied.

Under the United States Constitution, of course, "the State must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal," including a "transcript of prior proceedings when that transcript is needed for an effective defense or appeal." Britt v. North Carolina, 404 U.S. 226, 227 (1971). On the other hand, the Supreme Court held, in Pennsylvania v. Finley, 481 U.S. 551, 557 (1987), that equal protection principles did not require the provision of appointed counsel to indigent defendants in connection with post-conviction collateral proceedings. This being the case, it would appear that equal protection principles do not require that indigent defendants be supplied with a free copy of the trial transcript in connection with an Article 440 motion, which, of course, is a post-conviction collateral proceeding.

This has been the conclusion of other courts in New York State that have considered this issue as well. See People v. Gonzalez, 7 Misc 3d 1026(A) at * 1 (Sup. Ct. Queens Co. May 23, 2005) (denying motion to obtain transcript because there "is no constitutional or statutory requirement that a defendant, post conviction, be provided with a free transcript for reasons other than perfecting an appeal"); People v. Largo, 6 Misc 3d 1028(A) at *1 (Sup. Ct. Queens Co. Dec. 1, 2004) (holding that a "motion made pursuant to C.P.L. Section 440.10 is a collateral [*2]proceeding for which a defendant is not entitled to a transcript without cost"). See also People v. Richardson, 159 Misc 2d 167 (Sup. Ct. Kings Co. 1993) (holding no right to appointed counsel under state or federal law for Article 440 motion where no hearing ordered).

Finally, it is clear that Bogle does not need the transcript for his contemplated Article 440 motion. First, matters that appear on the trial record are not appropriate for review under Section 440.10; such matters must be addressed on direct appeal. See CPL § 440.10(2)(c). Second, Bogle's affidavit in support of this application explicitly states that the issues he plans to raise on his Article 440 motion "depend on evidence dehors the record . . . " Affidavit of Maxwell Bogle sworn to October 2, 2007, at ¶ 7 (emphasis added; citations omitted). Accordingly, it is clear that Bogle does not need the transcript for his contemplated Article 440 motion.

For these reasons, Bogle's motion is denied in all respects. The foregoing constitutes the Decision and Order of this Court.

Dated:November 27, 2007

Bronx, New York

____________________________________

Joseph J. Dawson, A.S.C.J.