Opinion
January 15, 1970
Appeal from the Erie County Court.
Present — Goldman, P.J., Gabrielli, Moule, Bastow and Henry, JJ.
Order entered September 15, 1966 unanimously vacated and appeal reinstated; appeal from order of June 19, 1968 dismissed as academic. Memorandum: Defendant was convicted on April 14, 1966 of possession of a loaded gun. In this application for coram nobis relief he states that his assigned attorney represented to him that his appeal would be prosecuted. Apparently the promise was not implemented since the appeal, which was timely taken on March 13, 1966, was dismissed on September 15, 1966 for failure to prosecute. Under the circumstances here presented the order of dismissal should be vacated and the defendant given an opportunity to have his appeal heard. ( People v. Montgomery, 24 N.Y.2d 130.)