Appellate Division: Second Judicial Department

M64245

E/sl

REINALDO E. RIVERA, J.P.

DAVID S. RITTER

MARK C. DILLON

EDWARD D. CARNI, JJ.

2007-04798 The People, etc., respondent, v Daniel Garner, appellant. (Ind. No. 05-772)

DECISION & ORDER ON MOTION

Motion by the appellant pro se for leave to prosecute an appeal from a judgment of the County Court, Orange County, rendered July 7, 2006, as a poor person and for the assignment of counsel. By order to show cause dated November 13, 2007, the appellant was directed to show cause before this court why an order should not be made and entered dismissing the appeal on the ground that the notice of appeal was untimely (see CPL 460.10[1][a], 460.30), and the appellant had not sought leave to file a late notice of appeal, and the motion for leave to proceed as a poor person and for the assignment of counsel was held in abeyance in the interim.

Upon the order to show cause and no papers having been filed in response thereto, and upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the motion to dismiss the appeal is granted and the appeal is dismissed (see CPL 460.10[1][a], 460.30); and it is further,

ORDERED that the motion for leave to proceed as a poor person and for the assignment of counsel is denied as academic.

RIVERA, J.P., RITTER, DILLON and CARNI, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court