Opinion
July 11, 1961
Motion by defendant for a new trial; cross motion by the People to vacate this court's order vacating a prior order dismissing the appeal. On July 13, 1955, defendant was convicted of first degree robbery and sentenced as a third felony offender to a term of 15 to 17 years. On August 9, 1955 defendant filed a notice of appeal by retained counsel. Thereafter (except as indicated below) defendant never made application for leave to dispense with printing or for assignment of counsel. On May 13, 1957, this court dismissed the appeal for failure to prosecute. On January 30, 1961, this court granted a motion by defendant to vacate the prior order of dismissal of May 13, 1957, to dispense with printing, and to assign counsel to prosecute the appeal. Defendant now moves for a new trial on the ground that the trial minutes were never transcribed and that the stenographic notes were destroyed about the time defendant's appeal was dismissed on May 13, 1957. The People cross-move to vacate the order of January 30, 1961, which vacated the prior order of dismissal, which permitted defendant to dispense with printing, and which assigned counsel to prosecute the appeal. The defendant's motion is denied; the People's cross motion to vacate the order of January 30, 1961, is granted, and said order is vacated. When defendant's appeal was dismissed on May 13, 1957, it was dismissed solely because of laches. That fact, however, was not called to the court's attention when the appeal was reinstated on January 30, 1961. In reinstating the appeal, this court acted in the erroneous belief that defendant had previously moved for leave to appeal as a poor person and that such a motion had been denied. Nolan, P.J., Beldock, Ughetta, Christ and Brennan, JJ., concur.