Appeal by the People from orders of the Supreme Court, New York County (Alfred H. Kleiman, J.), entered September 14, 1992 and November 6, 1992, granting defendant’s motions for suppression of physical evidence and statements and dismissing the indictment charging defendant with criminal possession of a controlled substance in the fifth degree and two counts of criminally possessing a hypodermic instrument, unanimously marked off calendar, with leave to restore within one year of the entry of this order upon submission of proof of service of appellant’s brief upon the defendant.
There is no indication on the record that defendant was ever advised that the prosecution had the right to appeal from the order dismissing the indictment, or of his right to be represented by counsel of his choice or to have counsel assigned if he were still indigent. Thus, defendant never sought or consented to be represented on this appeal by the Legal Aid Society, which represented defendant in the trial court and which was served with the prosecution’s appellate brief. Indeed, the Society has had no contact with the defendant since the dismissal of the indictment and is unaware of his whereabouts. Under these circumstances, the appeal may not be heard because the defendant was never served with the prosecution’s brief (People v Fernandez, 198 AD2d 96; People v DeLaRosa, 192 AD2d 403, lv granted 81 NY2d 1082). Concur— Sullivan, J. P., Ellerin, Kupferman and Nardelli, JJ.