(b) At the trial the undercover agent who
purchased the drugs from the relator, and Officer
Malone, both testified (Appendix App. Br., p. 56).
Officer Malone testified that he witnessed Officer
Modeste enter the "yard area" (Appendix App. Br.,
p. 59).
Relator's counsel stated at the trial

that there was a discrepancy or confusion between
the testimony at the hearing on the motion to
suppress and at the trial because "premises" could
not be said to include a "yard area" (Appendix App.
Br., pp. 56-60). The relator's attorney did not
have the transcript of the hearing to suppress at
the trial. He drew the above conclusion from word-
ing found in the decision denying the motion to
suppress and testimony given at the trial. The
trial judge considered this line of argument and
held that "premises" could be interpreted as in-
cluding yard area and that there actually was no
discrepancy (Appendix App. Br., p. 61).

The relator, who now has a transcript of the testimony taken at the hearing on the motion to suppress and at his trial, does not claim that he has found any contradictions between the testimony at the hearing on his motion to suppress and at the trial, and the record shows no discrepancies. Therefore, it is clear that the lack of the hearing transcript in no way prejudiced him at the trial.

In People v. Rosario, 9 N. Y. 2d 286 (1961), it was held that the trial Court should have allowed the defendant to examine statements given to the police by an eye-witness and a girl friend to whom the defendant confessed, for the purpose of cross-examination at the trial. However, the Court affirmed the conviction, holding (pp. 290-291):

"In this instance, though, we deem it not
amiss to consider whether the ruling which
he made prejudiced the defendant, whether,
in other words, there was a rational pos-
sibility that the jury would have reached
a different verdict if the defense had been
allowed the use of the witness' prior state-
ments. (See People v. Kingston 8 N. Y. 2d
384, 387; People v. Jackson, 7 N. Y. 2d 142,
145; People v. Mleczko, 298 N. Y. 153,
162-163. We believe not. On the record
before us, there can be no possible question
of the appellant's guilt, ***. And, of
the utmost significance, examination of the
prior statements discloses that the few
variances contained in them were of a most
inconsequential character."

The relator in the case at bar is clearly guilty, having been found to have sold drugs to a police undercover agent who testified at the trial; furthermore, the transcript shows

that any discrepancies between the testimony at the trial and at the hearing to suppress were inconsequential.

The above case is distinguishable from the case here in that William Cadogan's attorney was not prevented from examining the transcript of the hearing on the motion to

suppress. He was merely denied a free copy of the transcript.

POINT III

THE RELATOR IS NOT ENTITLED TO A WRIT
OF HABEAS CORPUS BECAUSE THE INTER-
MEDIARY ORDER OF WHICH HE COMPLAINS
CAME UP FOR REVIEW WHEN THE RELATOR
APPEALED DIRECTLY FROM THE FINAL
JUDGMENT AND THE WRIT MAY NOT BE
UTILIZED TO GAIN A SECOND REVIEW OF
ERRORS REVIEWED IN AN EARLIER APPEAL
WHEN NOT REQUIRED BY NECESSITY.

The relator admits in his petition that he appealed

directly from his judgment of conviction and that the judgment of conviction was affirmed (People v. Cadogan, 23 A D. 2d 721 [1965]) (7).

CPLR $ 5501 (a) 1 provides:

"(a) Generally, from final judgment. An appeal from a final judgment brings up for review:

"1. any non-final judgment or order which necessarily affects the final judgment, including any which was adverse to the respondent on the appeal from the final judgment and which, if reversed, would entitle the respondent to prevail in whole or in part on that appeal, provided that such non-final judgment or order has not previously been reviewed by the court to which the appeal is taken;

In People ex rel. Keitt v. McMann, 18 N. Y. 2d 257, (1966), the Court of Appeals held that (p. 262):

"Departure from orderly proceedings, such
as Appeal, should be permitted only when
dictated, as here, by reason of practicality
and necessity. We emphasize that this is
not a case where review of a mere error,
allegedly committed at the trial, is sought.
In such case, the writ may not be utilized
as a substitute for appeal or to again
review the errors already passed on in an
earlier appeal.'