People v. Baker , 635 N.Y.S.2d 481 ( 1995 )

—On the Court’s own motion, it is

Ordered that the decision and order of this Court dated July 3, 1995, which decided the defendant’s appeals from a judgment of the Supreme Court, Kings County (Lagaña, J.), rendered October 22,. 1976, and by permission, an order of the same court (Barasch, J.), dated November 9, 1992, is recalled and vacated and the following decision and order is substituted therefor:

Appeals by the defendant (1) from a judgment of the Supreme Court, Kings County (Lagaña, J.), rendered October 22, 1976, convicting him of murder in the second degree (two counts), upon a jury verdict, and imposing sentence, and (2) by permission, from an order of the same court (Barasch, J.), dated November 9, 1992, which denied, without a hearing, his motion pursuant to CPL 440.10 to vacate his judgment of conviction and his separate motion pursuant to CPL 440.20 to vacate the sentence imposed thereon.

Ordered that the appeals are dismissed as academic, the judgment is vacated, and the indictment is dismissed.

The defendant has died and the appeals are dismissed upon the ground that the criminal prosecution has abated by reason of the death (see, People v Mintz, 20 NY2d 753, mod 20 NY2d 770; People v Feliciano, 68 NY2d 790). Balletta, J. P., Copertino, Altman and Goldstein, JJ., concur.