Appellate Division: Second Judicial Department

M64204

E/sl

STEVEN P. FISHER, J.P.

ROBERT A. LIFSON

JOSEPH COVELLO

WILLIAM E. McCARTHY, JJ.

2007-02700, 2007-02702 The People, etc., appellant, v Issac Boampong, respondent. (Ind. No. 8757/06)

DECISION & ORDER ON MOTION

Motion by the appellant on appeals from two orders of the Supreme Court, Kings County, dated February 20, 2007, and March 15, 2007, respectively, to set a date certain for the filing of the respondent's brief or preclude the respondent from filing a brief.

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

ORDERED that the motion is denied; and it is further,

ORDERED that in compliance with the requirements of People v Garcia (93 NY2d 42):

THE DEFENDANT IS HEREBY ADVISED

A. that he has the right to the assistance of counsel on the People's appeals;

B. that if he is financially unable to retain counsel he may make an application to this court for the assignment of counsel, and, upon proof of such financial inability, one will be appointed for him;

C. that he has the right to forego the assistance of counsel and to respond to the People's appeals pro se; and

D. that unless within 60 days from the date of this decision and order on motion the defendant either responds to the appeals pro se or by retained counsel, or moves for the appointment of counsel to represent him, he shall be deemed to have waived his right to counsel on the appeals and the appeals shall be heard and determined on the People's brief and record alone; and,

ON THE COURT'S OWN MOTION, it is:

ORDERED that the People are directed to serve a copy of this decision and order on motion, together with a copy of their brief and appendix on the appeals, upon the defendant, by personal delivery of the same to him; and it is further,

ORDERED that the People shall file proof of such service with the Clerk of this court within 20 days of the date hereof; and it is further,

ORDERED that the defendant's time to respond to the appeals pro se or by retained counsel, or to move for the assignment of counsel, is enlarged until 60 days after the date of service upon him of a copy of this decision and order on motion together with a copy of the brief and appendix on the appeals, and in the event that he fails to so respond to the appeals, or to move for the assignment of counsel within that time, or fails to move for an enlargement of time to respond to the appeals, the defendant shall be deemed to have waived his right to counsel, and the appeals shall be considered and determined only on the People's brief and appendix, and original record; and it is further,

ORDERED that if personal service of a copy of this decision and order on motion cannot be made with due diligence, the People may make ex parte application to this court for an order authorizing alternative methods of service. Such an application shall be supported by affidavit or affidavits detailing the steps taken to find and serve the defendant personally.

FISHER, J.P., LIFSON, COVELLO and McCARTHY, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court