Appellate Division: Second Judicial Department

M58368

J/nl

ROBERT W. SCHMIDT, J.P.

REINALDO E. RIVERA

GLORIA GOLDSTEIN

ROBERT A. LIFSON, JJ.

2006-05306, 2006-04815 The People, etc., respondent, v Jerry Lowe, appellant. (Ind. No. 399/05)

DECISION & ORDER ON MOTION Motion for Leave to Serve Late Notice of Appeal, for Poor Person Relief & to Assign Counsel - Appeal from Judgment

On the court's own motion, it is

ORDERED that its decision and order on motion dated October 5, 2006, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor:

Motion by the appellant pro se, in effect, pursuant to CPL 460.30 for an extension of time to take appeals from a judgment of the Supreme Court, Queens County, rendered February 22, 2006, and a resentence of the same court imposed April 10, 2006, for leave to prosecute the appeals 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 granted; and it is further,

ORDERED that the appellant's moving papers are deemed to constitute a timely notice of appeal from the judgment and the resentence; and it is further,

ORDERED that the appeals 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 pretrial hearings, of the pleas of guilty or of the trial, and of the imposition of sentence and resentence in this action, 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, 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 the defendant's sentencing and resentencing, including the recommendation sheet and any prior reports on the defendant which are incorporated in 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 or resentence is raised on appeal, or if assigned counsel cites or relies upon the probation report in a brief or motion in any other way, counsel 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 pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeals:

The Legal Aid Society

199 Water Street - 5th Floor

New York, New York 10038

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 or her representative access to the record for the purpose of preparing the appeals; 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 appeals are taken; and it is further,

ORDERED that the briefs which have been filed in connection with Appellate Division Docket No. 2006-05306 are deemed to be also filed in connection with Appellate Division Docket No. 2006-04815.

SCHMIDT, J.P., RIVERA, GOLDSTEIN and LIFSON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Appellant's Address:

06 A 1338

Downstate Corr. Fac.

Box F

Fishkill, New York 12524