People State New York v. Ariel Pena

Appeal by the People from an order of the Supreme Court, New York County (Daniel Fitzgerald, J.), which granted defendant's motion to dismiss the indictment charging him with criminal possession of a weapon in the third degree, unanimously dismissed, with leave to reinstate within one year of entry of this order upon submission of proof of service of the People's brief upon the defendant. The appeal must be dismissed because the defendant was not served with the People's brief. The People's service of their brief upon the defendant's trial counsel does not constitute due process because pursuant to 22 NYCRR 606.5(a)(1) his duty to represent the defendant terminated with the conclusion of the proceeding in the trial court (People v Miller, A.D.2d , Appeal No. 47215 decided Dec. 17, 1992, 591 N.Y.S.2d 395, 1992 NY App Div LEXIS 14361). Further, this court has been advised by the trial counsel that he has not been retained to represent the defendant on this appeal (id.; see also, People v Clyde, A.D.2d , Appeal No. 47798 decided Jan. 7, 1993, 1993 NY App Div LEXIS 46).