People v. Poole

41 A.D.2d 699, 342 N.Y.S.2d 518, 1973 N.Y. App. Div. LEXIS 5013

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 1973
• Status: Published

Opinion

Motion granted, judgment vacated and new trial granted. Memorandum: Since the District Attorney failed to take an appeal from the order of Erie County Court, dated July 21, 1971; granting appellant a writ of error coram nobis and resentencing him nunc pro tune with respect to his .1959 conviction for purposes of appeal, we may not now review the propriety of that order, and we are, therefore, constrained to grant appellants, motion to vacate the judgment of conviction. It appears that the trial transcript of appellant’s jury trial in 1959 in Erie County Court was not filed in the County Clerk’s office (Judiciary Law, § 309) and is not available for use by defendant to prosecute an appeal. .Without such minutes it is impossible to make an appropriate evaluation and disposition of the issues arising'from the evidence and rulings of the trial court which might be raised on appeal. Their, loss must be deemed the loss of the right to adequate appellate review (People v. Jackson, 36 A D 2d 1008; People v. Schwach, 16 A D 2d 879). Present — Goldman, P. J., Del Veeehio, Witmer,. Cardamone and Henry, JJ. '.