People v. Santiago , 413 N.Y.S.2d 7 ( 1979 )

— Motion for reargument of an order of the court, entered November 2, 1978 [64 AD2d 355], reversing a judgment, Supreme Court, New York County, rendered November 5, 1975, convicting defendant, on his plea of guilty, of attempted possession of a weapon as a felony, granted, and, upon reargument the order vacated, the appeal dismissed, and the case remanded to the Supreme Court, New York County, for the purpose of vacating the judgment of conviction and of dismissing the indictment on the ground that the criminal prosecution has abated by reason of defendant’s death. On September 6, 1978, prior to the argument of this appeal, and unbeknownst to the court and counsel, defendant had died. It is well settled in New York that the death of a defendant abates the criminal prosecution. This court, therefore, lacked jurisdiction both at the time of argument and entry of its order of reversal and dismissal of the indictment. Accordingly, the appeal is dismissed, as academic, and the matter remanded to the trial court to vacate the conviction and dismiss the indictment, sua sponte, or on application by the District Attorney or the attorney who appeared for defendant. (See People v Mintz, 20 NY2d 770.) Concur — Murphy, P. J., Kupferman, Lupiano, Yesawich and Sullivan, JJ.