People v. Portee

Appellate Division of the Supreme Court of New York

People v. Portee

29 A.D.2d 933, 289 N.Y.S.2d 235, 1968 N.Y. App. Div. LEXIS 4188

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 23, 1968

StatusPublished

This text of 29 A.D.2d 933 (People v. Portee) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Portee, 29 A.D.2d 933, 289 N.Y.S.2d 235, 1968 N.Y. App. Div. LEXIS 4188 (N.Y. Ct. App. 1968).

Pincite

Opinion

Order entered March 11, 1966, denying, without a hearing, defendant’s coram nobis application, unanimously reversed, on the law, and proceeding remanded to Supreme Court, New York County, for a hearing. If the representations of the defendant are truthful, he requested his court assigned counsel to take an appeal from his conviction of murder, second degree; a notice of appeal was filed, but the appeal itself was not carried forward because of the defendant’s inability to pay the necessary fees and costs. Contemporaneously, defendant himself communicated both with the Trial Judge and the Clerk of the Appellate [934]*934Division, requesting further time to save his appeal. And in 1949, defendant again moved this court for similar relief and for leave to appeal as a poor person, which was denied. Although the passing of years herein may well prove to be prejudicial to the People, a hearing is required to determine if the defendant’s constitutional right to appeal has been frustrated and allowed to die, because of a combination of the defendant’s indigency and the acts of his assigned counsel in not further complying with the statutory requirements for taking and prosecuting an appeal, although cognizant of the defendant’s wishes. (Cf. People v. Coe, 16 A D 2d 876; People v. Adams, 12 N Y 2d 417; People v. Lampkins, 21 N Y 2d 138.) Concur — Botein, P. J., Eager, Capozzoli, McGivem and Rabin, JJ.

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Order entered March 11, 1966, denying, without a hearing, defendant’s coram nobis application, unanimously reversed, on the law, and proceeding remanded to Supreme Court, New York County, for a hearing. If the representations of the defendant are truthful, he requested his court assigned counsel to take an appeal from his conviction of murder, second degree; a notice of appeal was filed, but the appeal itself was not carried forward because of the defendant’s inability to pay the necessary fees and costs. Contemporaneously, defendant himself communicated both with the Trial Judge and the Clerk of the Appellate [934]*934Division, requesting further time to save his appeal. And in 1949, defendant again moved this court for similar relief and for leave to appeal as a poor person, which was denied. Although the passing of years herein may well prove to be prejudicial to the People, a hearing is required to determine if the defendant’s constitutional right to appeal has been frustrated and allowed to die, because of a combination of the defendant’s indigency and the acts of his assigned counsel in not further complying with the statutory requirements for taking and prosecuting an appeal, although cognizant of the defendant’s wishes. (Cf. People v. Coe, 16 A D 2d 876; People v. Adams, 12 N Y 2d 417; People v. Lampkins, 21 N Y 2d 138.) Concur — Botein, P. J., Eager, Capozzoli, McGivem and Rabin, JJ.

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Bluebook (online)

29 A.D.2d 933, 289 N.Y.S.2d 235, 1968 N.Y. App. Div. LEXIS 4188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-portee-nyappdiv-1968.