Opinion
February 8, 1994
Appeal from the Supreme Court, New York County (Alfred H. Kleiman, J.).
There is no indication on the record that defendant was ever advised that the prosecution had the right to appeal from the order dismissing the indictment, or of his right to be represented by counsel of his choice or to have counsel assigned if he were still indigent. Thus, defendant never sought or consented to be represented on this appeal by the Legal Aid Society, which represented defendant in the trial court and which was served with the prosecution's appellate brief. Indeed, the Society has had no contact with the defendant since the dismissal of the indictment and is unaware of his whereabouts. Under these circumstances, the appeal may not be heard because the defendant was never served with the prosecution's brief (People v Fernandez, 198 A.D.2d 96; People v. DeLaRosa, 192 A.D.2d 403, lv granted 81 N.Y.2d 1082).
Concur — Sullivan, J.P., Ellerin, Kupferman and Nardelli, JJ.