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People v. Poole

Appellate Division of the Supreme Court of New York, Fourth Department
Feb 28, 1973
41 A.D.2d 699 (N.Y. App. Div. 1973)

Opinion

February 28, 1973

Present — Goldman, P.J., Del Vecchio, Witmer, Cardamone and Henry, JJ.


Motion granted, judgment vacated and new trial granted. Memorandum: Since the District Attorney failed to take an appeal from the order of Erie County Court, dated July 21, 1971, granting appellant a writ of error coram nobis and resentencing him nunc pro tunc with respect to his 1959 conviction for purposes of appeal, we may not now review the propriety of that order, and we are, therefore, constrained to grant appellant's motion to vacate the judgment of conviction. It appears that the trial transcript of appellant's jury trial in 1959 in Erie County Court was not filed in the County Clerk's office (Judiciary Law, § 309) and is not available for use by defendant to prosecute an appeal. Without such minutes it is impossible to make an appropriate evaluation and disposition of the issues arising from the evidence and rulings of the trial court which might be raised on appeal. Their loss must be deemed the loss of the right to adequate appellate review ( People v. Jackson, 36 A.D.2d 1008; People v. Schwach, 16 A.D.2d 879).


Summaries of

People v. Poole

Appellate Division of the Supreme Court of New York, Fourth Department
Feb 28, 1973
41 A.D.2d 699 (N.Y. App. Div. 1973)
Case details for

People v. Poole

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. LONNIE POOLE, Appellant

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Feb 28, 1973

Citations

41 A.D.2d 699 (N.Y. App. Div. 1973)

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