SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
April 24, 1969
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
JOSEPH CRUZ, APPELLANT
Concur -- Stevens, P. J., Markewich, Nunez and Steuer, JJ.
While conceding defendant's right to relief, trial term denied defendant's application holding that his request should be addressed to the Appellate Division. In this the court below erred. The District Attorney concedes that defendant's request for a free trial transcript was denied thereby compelling defendant to prosecute his appeal without the benefit of his trial minutes. He also concedes that such denial violated the due process and equal protection clauses of the Fourteenth Amendment. (See Griffin v. Illinois, 351 U.S. 12; Eskridge v. Washington Prison Bd., 357 U.S. 214.) Recently the Court of Appeals has ruled that defendants who claim that their appeals were improperly dismissed should utilize coram nobis application as distinguished from an application made directly to the Appellate Division for reinstatement of an appeal. (See People v. Lampkins, 21 N.Y.2d 138, 142 .) A coram nobis application to the trial court will protect appealability to the Court of Appeals, whereas a motion to reinstate the appeal, being a non-final order, will not be appealable as a matter of right. By following the procedure herein mandated this "Destitute defendant must be afforded as adequate appellate review as defendants who have money enough to buy transcripts." (Griffin, supra, p. 19).
Order entered January 25, 1968, denying without a hearing appellant's motion for a writ of error coram nobis , unanimously reversed on the law the judgment of conviction is vacated and the matter remanded to the trial court for reimposition of sentence, nunc pro tunc , upon the guilty verdict rendered by the jury.
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