Appellate Division: Second Judicial Department

M42082

J/sl

HOWARD MILLER, J.P.

ROBERT W. SCHMIDT

THOMAS A. ADAMS

GLORIA GOLDSTEIN, JJ.

2005-02132 People of the State of New York, respondent, v Ricardo S. Fisher, appellant.

DECISION & ORDER ON MOTION

On the court's own motion, it is

ORDERED that its decision and order on motion dated May 20, 2005, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor:

Motion by the appellant for leave to prosecute an appeal from an order of the County Court, Nassau County, dated November 15, 2004, as a poor person, and for the assignment of counsel.

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

ORDERED that the motion is denied as unnecessary, as the appellant was granted leave to proceed as a poor person in the County Court and, pursuant to Correction Law § 168-n (3), his status as a poor person and the counsel assigned to represent him before the County Court, Nassau County, continues on appeal; 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 in this action, 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 to the appellant's counsel, without charge (see CPLR 1102[b]); assigned counsel is directed to turn over those transcripts to the respondent when counsel serves the appellant's brief on the respondent; and it is further,

ORDERED that upon service of a copy of this decision and order upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report prepared in connection with or considered by the trial court in connection with the appellant's risk level determination, including the recommendation sheet and any prior reports on the appellant which are incorporated or referred to in the report; and it is further,

ORDERED that the appellant's time to perfect the appeal is enlarged; assigned counsel shall perfect the appeal by causing the original papers constituting the record on the appeal to be filed in the office of the Clerk of this court (see 22 NYCRR 670.9[d][2]),and by serving and filing his brief on the appeal on or before October 12, 2006; and it is further,

ORDERED that in the event the file has been sealed, it is hereby unsealed for the limited purpose of allowing assigned counsel or his representative access to the record for the purpose of preparing the appeal; such access shall include permission to copy the papers insofar as they pertain to the appellant; and it is further,

ORDERED that the filing fee is waived (see CPLR 1103[d]); and it is further,

ORDERED that assigned counsel is directed to serve a copy of this order upon the Clerk of the court from which the appeal is taken.

MILLER, J.P., SCHMIDT, ADAMS, and GOLDSTEIN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court