Hays, Anderson and Feinberg, Circuit Judges. Anderson, Circuit Judge (concurring).
This is an appeal from an order of the United States District Court for the Northern District of New York granting appellee William Cadogan's application for a writ of habeas corpus, setting aside his state court convictions, and ordering the appellant Warden to discharge Cadogan from custody unless the State of New York retries him within 60 days. The execution of the order was stayed pending this appeal.
Before his state court trial on narcotics charges, appellee who had been declared indigent, requested a free copy of the transcript of a hearing on his pre-trial motion for suppression of certain evidence. This request was refused and the court below found that appellee thereby denied the equal protection of the laws. We do not agree and reverse the judgment.*fn1
In April, 1963 appellee was arrested at his home for narcotics violations. During a search incidental to this arrest, narcotics were uncovered and he was indicted on two counts of selling narcotics and one count of possessing narcotics. Since appellee was indigent, the Legal Aid Society was assigned to represent him. A pre-trial hearing on a motion to suppress the evidence seized pursuant to the arrest was had in Queens County Supreme Court. The two arresting officers, Detective Marvin Moskowitz and Patrolman James Malone, testified that they had been working with an undercover agent who had purchased narcotics from appellee on two occasions several days before the arrest and that they found narcotics during their search of appellee's premises. The motion to suppress was denied subject to renewal at trial.
Appellee moved pro se for a free copy of the transcript of the hearing on the motion to suppress. The motion was denied because there was no statutory authorization for providing such a transcript.*fn2
Appellee went to trial in September, 1963 before a different Queens County Supreme Court Justice, having waived a jury trial. He was represented by a different Legal Aid attorney from the attorney who had appeared for him on the motion to suppress and the State was represented by a different assistant district attorney. Patrolman Modesto, the undercover agent, was the principal witness and testified that he had purchased narcotics from appellee on two occasions and that he had identified appellee through a two-way mirror after his arrest. Patrolman Malone was called as a witness and his testimony was essentially the same as that which he gave at the suppression hearing. Detective Moskowitz was not called, partly because of confusion as to whose witness he was at the suppression hearing. Appellee was found guilty and received sentences of 15 to 30 years on each of the sales counts and 6 to 20 years on the possession count, all sentences to run concurrently. The Appellate Division affirmed. People v. Cadogan, 23 A.D.2d 721, 258 N.Y.S.2d 345 (2d Dept. 1965). Leave to appeal to the Court of Appeals was denied. Although the minutes of the suppression hearing were transcribed and available to appellee shortly after the trial, the earlier denial of the free transcript was not raised on appeal.
However, appellee has now exhausted this claim in the state courts. A habeas corpus petition raising the denial of the transcript was denied in the Clinton County Supreme Court. This order was affirmed by the Appellate Division, People ex rel. Cadogan v. McMann, 29 A.D.2d 844, 288 N.Y.S.2d 870 (3d Dept. 1968), and by the Court of Appeals, 24 N.Y.2d 233, 299 N.Y.S.2d 617, 247 N.E.2d 492 (1969). The Court of Appeals held that, although the rule announced in People v. Ballott, 20 N.Y.2d 600, 286 N.Y.S.2d 1, 233 N.E.2d 103 (1967), requiring the State to furnish a transcript of an earlier trial to an indigent, applied to the transcript of a pre-trial suppression hearing, the rule was not to be applied retroactively. Thus the problem presented by the present case will not arise in New York in trials commenced after the decisions in People v. Ballott, supra, and People v. Montgomery, 18 N.Y.2d 993, 18 N.Y.2d 993, 278 N.Y.S.2d 226, 224 N.E.2d 730 (1966).
Not every denial of a free transcript to an indigent results in a denial of equal protection of the laws. In Roberts v. LaVallee, 389 U.S. 40, 88 S. Ct. 194, 19 L. Ed. 2d 41 (1967) (per curiam), the Court said:
"Our decisions for more than a decade now have made clear that differences in access to the instruments needed to vindicate legal rights, when based upon the financial situation of the defendant, are repugnant to the Constitution." (Emphasis added.) Id. at 42, 88 S. Ct. at 196.