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PEOPLE, res, v. ORLANDO DUKES, def-app

570360/12. PEOPLE, res, v. ORLANDO DUKES, def-app — Ordered that the motion is granted to the extent of granting appellant leave to appeal as a poor person. Seymour W. James, Jr., Esq., of the Legal Aid Society, Criminal Appeals Bureau (199 Water Street, 3rd Floor, NY, NY 10038, tel# 212 577-3688) is assigned as counsel for the appellant to prosecute the appeal and to serve without compensation. So Order — Judgment of conviction (Herbert J. Adlerberg, J.H.O.), rendered March 28, 2012, reversed, on the law, and accusatory instrument dismissed.

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570360/12. PEOPLE, res, v. ORLANDO DUKES, def-app — Ordered that the motion is granted to the extent of granting appellant leave to appeal as a poor person. Seymour W. James, Jr., Esq., of the Legal Aid Society, Criminal Appeals Bureau (199 Water Street, 3rd Floor, NY, NY 10038, tel# 212 577-3688) is assigned as counsel for the appellant to prosecute the appeal and to serve without compensation. So Order — Judgment of conviction (Herbert J. Adlerberg, J.H.O.), rendered March 28, 2012, reversed, on the law, and accusatory instrument dismissed.

Defendant correctly argues, and the People candidly concede, that the court erred in proceeding to trial in the absence of defense counsel where the record taken as a whole (see People v. Providence, 2 NY3d 579, 583 [2004]) fails to establish that defendant made a knowing and intelligent waiver of his right to counsel. Nor did defendant, by virtue of his own absence at trial, waive that fundamental right (see People v. Aiken, 45 NY2d 394, 397-398 [1978]). In view of the minor nature of the offense here charged, we dismiss the accusatory instrument in lieu of ordering a new trial, a disposition consented to by the People.

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