People v. Miller

| N.Y. App. Div. | Dec 17, 1992

Appeal from an order, Supreme Court, New York County (Jay Gold, J.), issued October 2, 1991, which dismissed Indictment No. 4096/91, charging defendant, on the theory of acting in concert, with the crimes of criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [1]), criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09 [1]), and criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]), as unsupported by legally sufficient evidence, is dismissed, with leave to reinstate within one year of the entry of this order, upon submission of proof of service of appellant’s brief upon defendant.

In this appeal, the People seek to challenge the trial court’s grant of defendant’s motion, pursuant to CPL 210.20 (1) (b), to inspect the Grand Jury minutes and dismiss the indictment on grounds of legal insufficiency. Defendant was not served with the appellate brief. Trial counsel was served; however, his duty to represent defendant terminated at the conclusion of the proceedings below (see, 22 NYCRR 606.5 [a] [1]). He had not been assigned or retained, and he made no appearance to represent defendant on this appeal. Accordingly, no valid service upon defendant has been effected, and the appeal must be dismissed. Concur — Murphy, P. J., Ellerin, Kupferman, Kassal and Rubin, JJ.