Appellate Division: Second Judicial Department

M45419

O/sl

A. GAIL PRUDENTI, P.J.

WILLIAM F. MASTRO

STEVEN W. FISHER

ROBERT J. LUNN, JJ.

2004-04516 The People, etc., respondent, v Carlos Ruiz, appellant. (Ind. No. 10120/03)

DECISION & ORDER ON MOTION

Renewed motion by counsel assigned to represent the appellant on an appeal from a judgment of the Supreme Court, Queens County, rendered April 14, 2004, for leave to withdraw the brief filed pursuant to Anders v California (386 US 738), to unseal a record of a side bar conference which occurred during the sentence proceedings, and for leave to file a replacement brief.

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

ORDERED that the motion is granted, and the appellant's brief which was filed with the Clerk of this court on November 15, 2005, is deemed withdrawn, and the appellant's replacement brief shall be served and filed on or before January 5, 2007; and it is further,

ORDERED that on the court's own motion, the respondent's brief which was filed with the Clerk of this court on December 15, 2005, is stricken; and it is further,

ORDERED that on the court's own motion, the respondent's brief in response to the replacement brief and the appellant's pro se supplemental brief shall be served and filed on or before March 5, 2007; and it is further,

ORDERED that the sealed record of a side bar conference which occurred during the sentence proceedings on April 14, 2004, is 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 decision and order on motion of this court dated November 30, 2004, which granted poor person relief to the appellant is amended to include a direction to the court reporter to make, certify and file two transcripts of the stenographic minutes of the side bar conference which occurred during the sentence proceedings on April 14, 2004, if they are available, and the Clerk of the trial court is directed to furnish one copy to the appellant's counsel, without charge; and it is further,

ORDERED that in the event the stenographer has already prepared a transcript of the stenographic minutes of the subject proceedings 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 assigned counsel is directed to serve a copy of this order upon the Clerk of the court from which the appeal is taken, and to deliver the transcript of the stenographic minutes of the subject proceedings to the respondent when the appellant's brief is served.

PRUDENTI, P.J., MASTRO, FISHER and LUNN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court