People v. Frank , 486 N.Y.S.2d 107 ( 1985 )

— Judgment unanimously affirmed. Memorandum: On appeal from his conviction for burglary, second degree, and grand larceny, second degree, after a retrial, defendant contends that he was improperly denied the minutes of the first trial, to which he claims he was entitled under CPL 240.45 and People v Rosario (9 NY2d 286). The trial court properly determined that the transcript was not discoverable under CPL 240.45 and Rosario and that, because it was as available to defendant as to the prosecution, defendant had the responsibility to obtain it if he believed it necessary. Defendant, who is indigent, could have applied for a court order directing that a transcript be provided at public expense (see People v Sanders, 31 NY2d 463; People v Ballott, 20 NY2d 600; People v Montgomery, 18 NY2d 993). This he failed to do. The District Attorney, who had ordered a transcription of the testimony of two witnesses who were not to testify in the second trial, was not required to order a full transcript for the defendant. (Appeal from judgment of Niagara County Court, Hannigan, J. — burglary, second degree, and another charge.) Present — Hancock, Jr., J. P., Callahan, Doerr, Denman and O’Donnell, JJ.