Sullivan, J. P. (dissenting). Since I do not believe that dismissal of this appeal is either warranted or justified, I dissent. The majority, citing the policy underlying this Court’s newly promulgated rule (22 NYCRR 600.8 [f]),1 dismisses the appeal for the reason that the defendant-respondent was never personally served with a copy of the People’s brief. There can be no dispute, however, that the People, on or about June 23, 1989, served a timely notice of appeal on defendant’s trial attorney.
In the case of a People’s appeal, CPL 460.10 (1) (c) provides for the service of a copy of a notice of appeal "upon the defendant or upon the attorney who last appeared for him in the court in which the order being appealed was entered.” This provision, when complied with, as here, provides this Court with jurisdiction to determine the appeal. Once jurisdiction is obtained, neither this respondent nor, for that matter, any respondent, in a criminal or civil case, can, merely by being unavailable for personal service upon him of a copy of the appellant’s brief, deprive an appellant of his or her right of appeal or divest this Court of jurisdiction to decide the matter. Nor can any court rule or policy undercut a right statutorily conferred. As for the majority’s due process concerns with respect to defendant’s right to notice of the contin*408ued prosecution of this matter, once service of the notice of appeal is effected, defendant, through trial counsel, his statutory agent for such service (see, CPL 460.10 [1] [c]), is on notice of the pendency of the appeal. That is all that is required.
The problem in this and other similarly situated criminal appeals arises when, after proper service of a notice of appeal of a dismissal of an indictment or other appealable, dispositive intermediate order (see, CPL 450.20, 450.50), the defendant, whether indigent and represented at the trial level by court-assigned counsel2 or represented by private counsel, does not, as is often the case, seek the appointment of or retain appellate counsel and the People are unable to locate the defendant to serve him or her with a copy of their brief. There is no statutory provision for service of an appellate brief by the People in such a case. Our recently published rule, section 600.8 (f), was promulgated to address this concern. Our preexisting rule, section 600.11 (b) (2) (22 NYCRR 600.11 [b] [2]), requires proof of service of an appellant’s brief before such a brief can be filed with the Court, and due process would require at least an attempt at such service upon an unrepresented respondent.
Concededly, service on trial counsel who is not authorized to proceed further does not assure that an answering brief will be filed or satisfy section 600.11 (b) (2). And, in any event, acceptance of a brief is not trial counsel’s function, his service terminating, in the case of a dismissal of an indictment or suppression of evidence where the People are unable, in view of such suppression, to present sufficient evidence (see, CPL 450.20, 450.50), 30 days after service upon him of a copy of the dispositive order.
None of this is to say, however, that a defendant-respondent who is no longer represented by counsel and is unavailable for personal service upon him of an appellate brief can frustrate the appellate process merely by virtue of the fortuitous circumstance that his current whereabouts are unknown. After all, the requirement of service of a brief is not jurisdictional but, rather, one of notice. Perhaps the solution is to fashion a rule that in the case of service of a People’s notice of appeal upon the attorney who last appeared for the defendant in the trial court, as authorized by CPL 460.10 (1) (c), it shall be the duty of said attorney to notify the client, in writing, of the *409fact that such an appeal has been taken and to advise him of his right (1) to retain counsel to represent him on the appeal; or (2) to respond, pro se, to the appeal, or (3), upon proof of indigency, to seek the appointment of counsel. Such a rule would, it seems to me, satisfy the Court’s due process concerns without subjecting the People to the onerous and unrealistic burden of personal service on a defendant-respondent whose current whereabouts are unknown.
In any event, in this case, the attorney who represented defendant in the trial court, after service upon him of a copy of the People’s brief, moved for the appointment of counsel, which relief this Court granted by order entered June 16, 1992. While appointed appellate counsel has had no contact with defendant, having been advised by trial counsel that the latter had no knowledge as to defendant’s whereabouts and that he had not heard from him since his release, appellate counsel is prepared, as he notes, "to zealously defend the People’s appeal”.
In that regard, the majority’s finding that the assignment of appellate counsel was improper since defendant was able to retain counsel at the trial level ignores the fact that it was trial counsel who moved for the assignment of appellate counsel. In any event, since he has failed to keep himself apprised of the continued prosecution of his case, defendant can hardly be heard to complain of an assignment of counsel to protect his interests.
Accordingly, I would direct the People to serve appointed counsel with a copy of their brief and permit the appeal to go forward in normal course.
. This section provides that "[a]n appeal taken by the People must he perfected by serving a copy of the appellate’s brief upon respondent’s appellate attorney or upon respondent personally, if he or she is not represented by appellate counsel, within one year of the filing of the notice of appeal.”
. Legal Aid’s appeals bureau routinely accepts notices of appeal in People’s appeals as well as service of the People’s appellate briefs in cases where Legal Aid represented the defendant at the trial level.