
    The People of the State of New York v. Herbert Ely.
   Motion by defendant for an order reinstating criminal appeal. By notice of appeal filed June 18, 1958, defendant appealed from a judgment of conviction rendered by the Court of General Sessions on May 28, 1958. By order of this court dated April 9, 1959 the appeal was dismissed on motion of the District Attorney for failure to prosecute. By notice of appeal filed November 15, 1963 defendant appealed from denial of comm nobis relief by the Supreme Court, New York County on October 31, 1963. By order of this court dated April 7, 1964 defendant was granted leave to appeal as a poor person and attorney Michael Klein was assigned. The prior motion was granted to the extent of remanding this matter in Part XXX, Supreme Court, New York County, for hearing with subsequent report to this court. That report is now before us. It does not appear that appellant was deprived of his rights by reason of his claimed indigence. Moreover, the acts complained of, even if we assume they did occur and there was some misunderstanding on the part of the appellant, were not the acts of the State. “ The court does not stand as surety for the proper performance of assigned counsel’s professional duties”. (People v. Kling, 19 A D 2d 750; People v. Tomaselli, 7 N Y 2d 350.) Not is it claimed that there was any error or such error committed at the trial as would warrant the intervention of this court. We find no merit in the arguments of the appellant, and accordingly the motion is denied. Concur — Botein, P. J., Breitel, Yalente, McNally and Stevens, JJ.  