Munn. The testimony of Lee Mosher, both on direct and recall, and Anna Madej is missing, as are the opening and closing statements of counsel and the court’s instructions. The District Attorney failed to take an appeal from the order of Onondaga County Court dated June 15, 1970 granting defendant a wit of error
coram nobis and resentencing defendant with respect to his 1955 conviction for the purposes of appeal, and we may not now review the propriety of that order and we must grant defendant’s motion to vacate the judgment of conviction. As this court held, as recently as February of this year in a case involving a 1959 conviction, when the stenographieal transcript of a jury is not available for use by defendant to prosecute an appeal, it is impossible to make an appropriate evaluation and disposition of the issues arising from the evidence and rulings of the trial court which might be raised on appeal. The loss of the transcript must be deemed the loss of the right to adequate "appellate review and we are constrained to grant a new trial
(People v. Poole, 41 A D 2d 699 ). This rule is consistent with earlier decisions of this court
(People v.
Juhl, 38 A D 2d 889 ;
People v.
Jackson, 36 A D 2d 1008 ;
People v. Hartley, 34 A D 2d 733 ;
People v.
Sckwach, 16 A D 2d 879 ;
Waterman v.
State of New York, 13 A D 2d 619 ). Decisions in other departments are in accord
(People v.
Boone, 22 A D 2d 982 [3d Dept.];
People v.
Williams, 13 A D 2d 814 [2d Dept.];
People v.
Himmel, 10 A D 2d 622 [1st Dept.];
People v.
De Mayo, 2 A D 2d 985 [2d Dept.]). In
People v.
Lomoso ( 284 App. Div. 670 , 672), we held that availability of a portion, of the transcript is not sufficient. “We recognize that occasionally there may be absent from a record an insignificant portion. It is another matter, however, when we are asked to pass upon an appeal when the testimony of an entire afternoon of the trial is missing from the record.” In
People v.
Hines (
57 App. Div. 419 , 422), the court stated: “When one is deprived either of his property or his liberty, the court depriving him of it must have record evidence justifying the action taken, which can be produced when called for, in order that a review may be had by an appellate tribunal.” The case of
Norvell v.
Illinois (
373 U. S. 420 [1963]), presented a far different situation from that involved here. In
Norvell, the United States Supreme Court was called upon to determine the constitutionality of an Illinois statute as applied to indigent defendants in light of its earlier ruling in
Griffin v.
Illinois ( 351 U. S. 12 [1956]). The
Griffin case held that an indigent can not be deprived of any right to appeal because he can not afford the cost of its prosecution. Here, we have no constitutional question as to the application of any statute to indigent defendants. Nor do we have a situation where a defendant waived his right to appeal by voluntarily allowing the time for its filing to pass. As was determined at the
Montgomery hearing, defendant was never advised of his right to appeal from his 1955 conviction, and it was for the purpose of correcting that error that he was resentenced so that an appeal could be taken. There is nothing in the record to indicate any justifiable excuse for the entire transcript not having been preserved, and its unavailability is certainly not defendant’s fault. (Appeal from judgment of Onondaga County Court, rendered July 1, 1955, following resentence.) Present — Del Vecchio, J. P., Moule, Cardamone, Simons and Henry, JJ.