Opinion
December 9, 1963
On October 14, 1963, upon petition of the defendant, the Supreme Court of the United States granted certiorari in this case ( People v. Reatz, ___ U.S. ___) and vacated the order of this court entered February 4, 1963. That order had denied defendant's motion for reconsideration of his prior motion to vacate an order of this court made May 7, 1945 dismissing his appeal from a judgment of the former County Court, Kings County, rendered October 30, 1944 after a jury trial, convicting him of burglary in the third degree and petit larceny, and sentencing him as a second felony offender to serve a term of 10 to 20 years. It appears that since the prior judgment, the defendant has been convicted of another crime: On January 19, 1962 based upon his guilty plea, judgment was rendered by the said County Court convicting him of robbery in the second degree, unarmed, and sentencing him as a third felony offender to serve a term of 12 1/2 to 15 years. On November 19, 1962 such judgment was affirmed by this court ( People v. Reatz, 17 A.D.2d 979). Based on the mandate of the Supreme Court of the United States and its grant of certiorari, defendant now moves for reconsideration of his appeal from the 1944 judgment and for leave to prosecute said appeal on the original papers and a typewritten brief; he also requests a transcript of the minutes of the trial. He states, however, that he does not desire the assignment of counsel. The motion is granted; the order of this court dated May 7, 1945, dismissing the appeal from the 1944 judgment is vacated; and such appeal is reinstated. The appeal will be heard on the original papers including a typewritten transcript of the minutes of the trial and on appellant's typewritten brief. The appellant is directed to file six copies of his typewritten brief and to serve one copy on the District Attorney. Defendant's time to perfect the appeal is enlarged to the April Term, commencing March 30, 1964; the appeal is ordered on the calendar for said term. The District Attorney of Kings County is hereby directed to make available to the defendant, without cost to him, a transcript of the minutes of the trial which resulted in the 1944 judgment of conviction. Beldock, P.J., Christ, Brennan, Hill and Hopkins, JJ., concur.