Opinion
February 19, 1970
Appeal from the Supreme Court, Chautauqua County.
Present — Del Vecchio, J.P., Marsh, Gabrielli, Bastow and Henry, JJ.
Order unanimously reversed and matter remitted to Chautauqua County Supreme Court for a hearing in accordance with the following memorandum: Defendant is entitled to a hearing upon the controverted allegations of the petition to determine whether his failure to serve and file a notice of appeal was attributable to the failure of his assigned counsel to advise him of his right to appeal. ( People v. Montgomery, 24 N.Y.2d 130.)