Appellate Division: Second Judicial Department

M37195

S/sl

FRED T. SANTUCCI, J.P.

GABRIEL M. KRAUSMAN

REINALDO E. RIVERA

STEVEN W. FISHER, JJ.

2005-10692 The People, etc., respondent, v Carlos Kelly, a/k/a Ricardo McDonald, appellant. (Ind. No. 5220/96)

DECISION & ORDER ON MOTION

Motion by the appellant pro se on an appeal from a purported judgment of the Supreme Court, Kings County, rendered October 31, 2005, for leave to prosecute the appeal from the purported judgment as a poor person, and for the assignment of counsel. By order to show cause dated January 4, 2006, the defendant was directed to show cause before this court why an order should or should not be entered dismissing the appeal from the purported judgment on the ground that no appeal lies from the purported judgment, as the purported judgment is nothing more than a proceeding to cause a judgment of the same court rendered December 16, 1997, to be brought to execution (see People v Benn, 172 AD2d 756), and the motion was held in abeyance in the interim.

Upon the court's own motion and no papers having been filed in response to the order to show cause, it is

ORDERED that the appeal is dismissed; and it is further,

ORDERED that the motion for poor person relief and the assignment of counsel is denied as academic.

SANTUCCI, J.P., KRAUSMAN, RIVERA and FISHER, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court