Appellate Division: Second Judicial Department

M41062

F/sl

A. GAIL PRUDENTI, P.J.

ANITA R. FLORIO

HOWARD MILLER

ROBERT W. SCHMIDT

THOMAS A. ADAMS, JJ.

2006-01146 People of the State of New York, respondent, v Jose Foil, appellant.

DECISION & ORDER ON MOTION

Motion by the appellant pro se for leave to prosecute an appeal from a determination of the Supreme Court, Queens County, dated December 19, 2005, 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 Supreme Court and, pursuant to Correction Law § 168-n (3), his status as a poor person and the counsel assigned to represent him before the Supreme Court, Queens 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 of any hearing held in connection with the determination dated December 19, 2005, except for those minutes previously transcribed and certified (see 22 NYCRR 671.9); 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 November 1, 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.

PRUDENTI, P.J., FLORIO, MILLER, SCHMIDT, and ADAMS, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court