Appellate Division: Second Judicial Department

M61169

E/sl

HOWARD MILLER, J.P.

DAVID S. RITTER

JOSEPH COVELLO

WILLIAM E. McCARTHY, JJ.

2005-06365 The People, etc., respondent, v Clay Bennett, appellant. (Ind. No. 1245/04)

DECISION & ORDER ON MOTION

Motion by the appellant pro se (1) to relieve counsel retained to prosecute an appeal from a judgment of the County Court, Suffolk County, rendered June 3, 2005, and for leave to prosecute the appeal pro se, and (2), in effect, for leave to reargue his motion for leave to serve and file a supplemental brief on an appeal from a judgment of the County Court, Suffolk County, rendered June 3, 2005, which was determined by decision and order on motion dated April 25, 2007.

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

ORDERED that the branch of the motion which is to relieve counsel and for leave to prosecute the appeal pro se is denied with leave to renew on or before December 11, 2007, upon the appellant's submission to the Clerk of the Court of a properly executed waiver of his right to appellate counsel, which waiver is to read as follows:

WAIVER OF RIGHT TO APPELLATE COUNSEL

I understand 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 voluntarily elect 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.

Clay Bennett

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 Clay Bennett, 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, in effect, for leave to reargue his motion for leave to serve and file a supplemental brief is granted, and, upon reargument, the decision and order on motion dated April 25, 2007 is recalled and vacated, and the motion for leave to serve and file a supplemental brief is granted; and it is further,

ORDERED that the District Attorney shall file the transcript of the proceedings, if any, and the Clerk of this Court shall deliver those minutes to the person in charge of the institution wherein the appellant is incarcerated for examination by the appellant; the transcript shall be returned to this Court when the appellant files the supplemental brief or informs this Court that no supplemental brief will be filed; and it is further,

ORDERED that the appellant shall file nine copies of the supplemental brief and serve one copy on the District Attorney.

Upon delivering the minutes to the institution, the Clerk of this Court shall advise the appellant of the date by which the minutes are to be returned and the brief filed.

MILLER, J.P., RITTER, COVELLO and McCARTHY, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court