Opinion
January 15, 1970
Appeal from the Monroe County Court.
Present — Del Vecchio, J.P., Marsh, Moule, Bastow and Henry, JJ.
Orders unanimously reversed and matter remitted to Monroe County Court for further proceedings in accordance with the following memorandum: Defendant is entitled to a hearing upon the controverted allegations of the petition to determine whether his failure to serve and file a notice of appeal was attributable to the failure of his assigned counsel to advise him of his right to appeal. ( People v. Montgomery, 24 N.Y.2d 130.) A defendant is not required to prove that his appeal has substantial merit before he is entitled to the hearing here requested.