Appellate Division: Second Judicial Department

M138665

F/

A. GAIL PRUDENTI, P.J.

ANITA R. FLORIO

HOWARD MILLER

ROBERT W. SCHMIDT

THOMAS A. ADAMS, JJ.

2005-02232 People of the State of New York, respondent, v James Penson, appellant.

DECISION & ORDER ON MOTION Motion by Counsel to be Relieved of Assignment

Motion by assigned counsel to be relieved of an assignment to prosecute an appeal from a determination of the Supreme Court, Richmond County, issued pursuant to Correction Law § 168-n, dated January 28, 2005 . The appellant's motion for leave to prosecute the appeal as a poor person and for assignment of counsel was granted on August 8, 2005, and the following named attorney was assigned as counsel to prosecute the appeal: Lynn W. L. Fahey, Esq., Appellate Advocates, 2 Rector Street - 10th Floor, New York, New York 10006.

Upon the papers filed in support of the motion and no papers having been filed in opposition or in relation thereto; it is

ORDERED that the motion is granted, and the former assigned counsel is directed to turn over all papers in the action to new counsel herein assigned; and it is further,

ORDERED that pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeal:

The Legal Aid Society

199 Water Street - 5th Floor

New York, New York 10038

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 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