Appellate Division: Second Judicial Department

M45098

S/sl

HOWARD MILLER, J.P.

STEPHEN G. CRANE

DAVID S. RITTER

DANIEL F. LUCIANO, JJ.

2006-06959 The People, etc., respondent, v John Rucker, appellant. (Ind. No. 8083/78)

DECISION & ORDER ON MOTION

On the court's own motion, it is

ORDERED that its decision and order on motion dated September 18, 2006, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor:

Motion by the defendant for leave to appeal to this court from an order of the Supreme Court, Queens County, dated May 31, 2006, which determined his motion made pursuant to Ch 643, L 2005, and for leave to prosecute the appeal as a poor person and for the assignment of counsel.

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

ORDERED that the motion denied as unnecessary as the order is appealable as of right (see Ch 643, L 2005); the motion papers are deemed to be a timely notice of appeal; and it is further,

ORDERED that the branch of the motion which is for leave to prosecute the appeal as a poor person is granted; and it is further,

ORDERED that the appeal will be heard on the original papers (including a certified transcript of any hearing held in connection with the appellant's motion, 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 any hearing held in connection with the appellant's 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 appellant's counsel, without charge (see CPL 460.70); 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 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 assigned counsel; and it is further,

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

Warren Hecht, Esq.

118-21 Queens Boulevard, Suite 518

Forest Hills, New York 11375

and it is further,

ORDERED that the appellant's time to perfect the appeal is enlarged; assigned counsel 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 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 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., CRANE, RITTER and LUCIANO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Appellant's address:

03 A 1950

Otisville Correctional Facility

Box 8

Otisville, New York 10963