
    The People of the State of New York, Respondent, v. Bert E. Kalan, Appellant.
    Argued November 28, 1956;
    decided January 24, 1957.
    
      
      Arthur Karger for appellant.
    
      Frank D. O’Connor, District Attorney (Benj. J. Jacobson and Stephen J. Masse of counsel), for respondent.
   Per Curiam.

When this appellant filed his appeal, as of right, in the court below it was apparent that he was penniless, and unable to employ counsel or to pay for a transcript of the trial minutes; that he was in prison and physically unable to inspect the transcript of the minutes which had been filed in the Clerk’s office of Queens County pursuant to section 456 of the Code of Criminal Procedure. While we do not decide that failure to appoint counsel will always constitute a deprivation of constitutional rights, we nonetheless hold that, under the circumstances of this case, refusal to assign counsel upon defendant’s request prevented an effective use of the right to appeal in violation of the constitutional guarantees of due process and equal protection. (N. Y. Const., art. I, §§ 6, 11.)

The judgment should be reversed and the appeal remitted to the Appellate Divison for further proceedings in accordance with this opinion.

Conway, Ch. J., Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke, JJ., concur.

Judgment reversed, etc.  