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PEOPLE STATE NEW YORK v. JETHRO PORTEE (04/23/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT


April 23, 1968

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
JETHRO PORTEE, APPELLANT

Concur -- Botein, P. J., Eager, Capozzoli, McGivern and Rabin, JJ.

Order entered March 11, 1966, denying, without a hearing, defendant's coram nobis application, unanimously reversed, on the law, and proceeding remanded to Supreme Court, New York County, for a hearing. If the representations of the defendant are truthful, he requested his court assigned counsel to take an appeal from his conviction of murder, second degree; a notice of appeal was filed, but the appeal itself was not carried forward because of the defendant's inability to pay the necessary fees and costs. Contemporaneously, defendant himself communicated both with the Trial Judge and the Clerk of the Appellate Division, requesting further time to save his appeal. And in 1949, defendant again moved this court for similar relief and for leave to appeal as a poor person, which was denied. Although the passing of years herein may well prove to be prejudicial to the People, a hearing is required to determine if the defendant's constitutional right to appeal has been frustrated and allowed to die, because of a combination of the defendant's indigency and the acts of his assigned counsel in not further complying with the statutory requirements for taking and prosecuting an appeal, although cognizant of the defendant's wishes. (Cf. People v. Coe, 16 A.D.2d 876; People v. Adams, 12 N.Y.2d 417; People v. Lampkins, 21 N.Y.2d 138.)

19680423

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