CPL 190.50 (subd 5, par [a]) sets forth the circumstances under which a person who was not called as a witness by the People or the Grand Jury may, as a matter of right, appear and testify at the proceedings. If, as here, the matter is presented to the Grand Jury while it is still in the local criminal court, the District Attorney is required to serve an appropriate notice on the defendant (CPL 190.50, subd 5, par [a]). This provision is designed to prevent a District Attorney from depriving a defendant of the opportunity of appearing before the Grand Jury by suddenly and secretly transferring the case out of the lower court and into the Grand Jury at a time when the defendant has no reason to believe a Grand Jury proceeding is in progress. CPL 190.50 (subd 5, par [c]) provides that failure to notify the defendant pursuant to paragraph (a) of subdivision 5 is a defect which would warrant dismissal of the indictment upon a timely motion pursuant to CPL 210.20. Since it is clear that defendant, both with respect to the first indictment and the superseding indictment, timely moved within the five days prescribed (CPL 190.50, subd 5, par [c]), no waiver of his right can be assigned on the ground of timeliness. Accordingly, the resolution of this issue necessarily turns on the issue of whether the defendant, with knowledge that the Grand Jury was considering the charges against him, knowingly waived his right to appear.
A careful review of the record clearly establishes that defendant was deprived of effective representation by counsel that denied him an important statutory right (see People v Droz, 39 NY2d 457; People v La Bree, 34 NY2d 257). Defendant counsel Neidl conceded in his November 7, 1977 letter to this court* that his visit to defendant at the Albany County *202Jail took place on August 10, 1977 and not, as alleged in his affidavit of August 24, 1977, on August 12, thereby making it impossible for him to inform defendant on August 10 that he had been advised by the District Attorney’s office that the matter was being resubmitted to the Grand Jury, since that information was conveyed to defense counsel on August 12, 1977. While it is clear that on August 10, defendant and his counsel discussed the wisdom of defendant appearing before the Grand Jury, such conversation could only have been premised on a hypothesis that there would be a resubmission. In any event, despite counsel’s advice that it would be better for defendant not to appear before that body, the record clearly establishes that defendant wanted to "think it over”. He did not indicate to his counsel that he would not appear and he did not instruct him to so advise the District Attorney’s office. Yet, on August 15, 1977, defense counsel advised the Assistant District Attorney that his client had waived his right to appear before the Grand Jury upon the resubmission. The superseding indictment was handed down on August 18, 1977.
While it is impossible to define with any precision what constitutes ineffective representation (People v Bennett, 29 NY2d 462, 466), at the very least the right of a defendant to be represented by an attorney includes the duty of that attorney to bring before the court all legitimate rights allegedly abridged by the People. Here, the record is replete with efforts by defendant to appear before the Grand Jury or, in the absence of accession to that right, to have the indictment dismissed. The defendant moved on appropriate papers on July 18, 1977 to dismiss the first indictment, the very day Attorney Neidl was assigned to represent him, and Neidl acquiesced in the motion. Thereafter, defendant’s attitude that he wanted to testify never changed, as evidenced by his frequent renewals of his motion to dismiss. Yet, defense counsel, without authority, informed the District Attorney, on August 15, 1977, that defendant had waived his right to appear before the Grand Jury upon the resubmission. Accordingly, the court dismissed defendant’s motion four days before trial was commenced.
I conclude that Attorney Neidl, knowing his client’s state of mind with respect to his right to appear before the Grand Jury, had a duty on August 12, 1977 to inform defendant of the resubmission and ascertain his final position while there *203was still sufficient time for defendant to demand and be afforded the opportunity to appear before that body. His failure to discharge that duty effectively deprived defendant of his constitutional right of the assistance of counsel, and, since the lack of such assistance deprived defendant of an opportunity to have the superseding indictment dismissed, it constituted error that cannot be deemed harmless (People v La Bree, supra). While errorless representation is not required, minimally the assistance of counsel must be susceptible of being deemed of an assistive nature (Brubaker v Dickson, 310 F2d 30, 37).
The indictment should be dismissed (CPL 190.50, subd 5, par [c]). However, CPL 210.20 (subd 4) provides that if an indictment is dismissed upon any of the grounds specified in CPL 210.20 (subd 1, pars [a], [b], [c]), the court may, upon application of the People, in its discretion, authorize the People to submit the charge or charges to the same or another Grand Jury. CPL 210.20 (subd 1, par [c]) provides for indictment dismissal upon the ground that "[t]he grand jury proceeding was defective, within the meaning of section 210.35” and CPL 210.35 (subd 4) provides that a Grand Jury proceeding is defective when "[t]he defendant is not accorded an opportunity to appear and testify before the grand jury in accordance with the provisions of section 190.50”.
The judgment should be reversed, the indictment dismissed and the matter remitted with leave to the People to resubmit to same or another Grand Jury.
Sweeney, Kane and Staley, Jr., JJ., concur with Herlihy, J.; Mahoney, P. J., dissents and votes to reverse in an opinion.
Judgment affirmed.
Attorney Neidl’s letter was submitted in connection with a proceeding commenced in this court by defendant to have Neidl removed.