Opinion
April 7, 1971
Motion by respondent to dismiss appeal from an order of the County Court, Suffolk County, dated March 3, 1969, for lack of prosecution. Cross motion by appellant to withdraw said appeal on the ground that the District Attorney's affidavit in connection with the filing of the notice of appeal to the effect that in the absence of the evidence suppressed by the order appealed from the People's proof was "either insufficient as matter of law or was so weak in its entirety that any reasonable possibility of prosecuting the charge to a conviction had been effectively destroyed" (see Code Crim. Pro., § 518-a) was improvidently filed. Motion to dismiss appeal denied. Cross motion granted; appeal deemed withdrawn. On the record before us, we are of the opinion that the People's admission, prior to the determination of the appeal, that its certificate under section 518-a of the Code of Criminal Procedure was improvidently filed, warrants withdrawal of the appeal rather than dismissal for lack of prosecution. Rabin, P.J., Hopkins, Munder, Martuscello and Brennan, JJ., concur.