Appellate Division: Second Judicial Department

M56211

F/

REINALDO E. RIVERA, J.P.

ANITA R. FLORIO

STEVEN W. FISHER

MARK C. DILLON, JJ.

2007-03250 The People, etc., respondent, v Kevin Oliver, appellant. (Ind. No. 399/06)

DECISION & ORDER ON MOTION

Motion by the appellant pro se pursuant to CPL 460.30 for an extension of time to take an appeal from a judgment of the County Court, Nassau County, rendered January 30, 2007, in effect, for leave to proceed pro se, for leave to prosecute the appeal as a poor person, and to be provided with a legal adviser.

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

ORDERED that the branch of the motion which is to extend the time to take an appeal is granted, and the appellant's moving papers are deemed to constitute 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 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, if any, of any pretrial hearings, of the plea of guilty or of the trial, and of the imposition of sentence in this action, except for those minutes previously transcribed and certified (see 22 NYCRR 671.9); and it is further,

ORDERED that in the event that the case was tried to a conclusion before a jury, the stenographer shall also make, certify and file two transcripts of the minutes of proceedings during jury selection; 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 Clerk of this court, without charge (see CPL 460.70) who shall arrange for their delivery to the appellant; the appellant is directed to turn over those transcripts to the respondent when he serves his 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 the appellant; 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 the appellant with a copy of the pre-sentence report prepared in connection with the defendant's sentencing, including the recommendation sheet and any prior reports on the defendant which are incorporated or referred to in the report; and it is further,

ORDERED that in the event an issue as to the legality, propriety or excessiveness of the sentence is raised on appeal, or if the appellant cites or relies upon the probation report in a brief or motion in any other way, the appellant shall provide a complete copy of such report and any attachments to the court and the District Attorney's office prior to the filing of such brief or motion; and it is further,

ORDERED that the branch of the motion which is for leave to proceed pro se is granted on condition that, upon the filing of his appellate brief with this court, the appellant shall also file a properly executed waiver of his right to appellate counsel, which waiver shall read as follows:

WAIVER OF RIGHT TO APPELLATE COUNSEL

I have been advised that (1) I have the right to be represented by an attorney in prosecuting my appeal, and (2) if I cannot afford to retain counsel, one will be assigned to represent me at State expense. Knowing these rights I have voluntarily elected to waive them and to represent myself on the appeal. I have not been forced to waive my rights and I believe myself to be of sufficient intelligence and ability to properly protect my own interests without the assistance of a lawyer to, among other things, write an appellate brief.

Kevin Oliver

State of )

) ss.

County of )

On the day of in the year before me, the undersigned, a Notary Public in and for said State, personally appeared Kevin Oliver personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same, and that by his signature on the instrument, the individual executed the instrument.

Notary Public

and it is further,

ORDERED that the branch of the motion which is to enlarge the appellant's time to perfect the appeal is granted, and he shall perfect 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 the appellant shall file nine copies of his brief and serve one copy on the District Attorney; and it is further,

ORDERED that the branch of the motion which is for a legal adviser is denied; and it is further,

ORDERED that the Clerk of this court, or his designee, is directed to serve a copy of this order upon the Clerk of the court from which the appeal is taken.

RIVERA, J.P., FLORIO, FISHER, and DILLON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Appellant's Address:

Please make inquiry to the State Inmate Locator

New York State Department of Correctional Services

Telephone: (518) 457-0043