Appellate Division: Second Judicial Department

M35448

C/sl

HOWARD MILLER, J.P.

DANIEL F. LUCIANO

ROBERT J. LUNN

MARK C. DILLON, JJ.

2005-06896 The People, etc., respondent, v Bernard Sebastian, appellant. (Ind. No. 0307-99)

DECISION & ORDER ON MOTION Motion for Poor Person Relief and to Assign Counsel - Appeal From Order Denying Motion to Vacate Judgment

Motion by the defendant for leave to prosecute an appeal from an order of the Supreme Court, Richmond County, dated June 17, 2005, which denied his motion to vacate a judgment of conviction against him, as a poor person.

Upon the papers filed in support of the motion and the papers filed in relation thereto, it is

ORDERED that the motion is granted; and it is further,

ORDERED that the appeal will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the appellant's and the respondent's briefs; the parties are directed to file nine copies of their respective briefs and to serve one copy on each other; and it is further,

ORDERED that the stenographer of the trial court is directed promptly to make, certify, and file two transcripts of the proceedings of any hearing on the motion, except for those minutes previously transcribed and certified (see 22 NYCRR 671.9); and it is further,

ORDERED that the Clerk of the trial court shall furnish one certified transcript of each of the proceedings set forth above to the Clerk of this court, without charge (see CPL 460.70) who shall arrange for their delivery to the appellant; the appellant is directed to turn over those transcripts to the respondent when he serves his brief on the respondent; and it is further,

ORDERED that in the event the stenographer has already prepared a copy of any of the minutes for a codefendant, then the Clerk of the Trial Court is directed to reproduce a copy thereof for the appellant; and it is further,

ORDERED that at the time the appellant files his brief, the appellant shall also file a properly executed waiver of his right to appellate counsel, which waiver shall read as follows:

WAIVER OF RIGHT TO APPELLATE COUNSEL

I have been advised that

(1) I have the right to be represented by an attorney in prosecuting my appeal, and (2) if I cannot afford to retain counsel, one will be assigned to represent me at State expense. Knowing these rights I have voluntarily elected to waive them and to represent myself on the appeal. I have not been forced to waive my rights and I believe myself to be of sufficient intelligence and ability to properly protect my own interests without the assistance of a lawyer to, among other things, write an appellate brief.

Bernard Sebastian

State of )

) ss.

County of )

On the day of in the year before me, the undersigned, a Notary Public in and for said State, personally appeared personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same, and that by his signature on the instrument, the individual executed the instrument.

Notary Public

and it is further,

ORDERED that the appellant's time to perfect the appeal is enlarged; the appellant shall prosecute the appeal expeditiously in accordance with this court's rules (see 22 NYCRR 670.1, et seq.) and written directions; and it is further,

ORDERED that the appellant shall file nine copies of his brief and serve one copy on the District Attorney.

H. MILLER, J.P., LUCIANO, LUNN and DILLON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Appellant's Address:

02-R-2689

Orleans Correctional Facility

3531 Gaines Basin Blvd.

Albion, New York 14411