Appellate Division: Second Judicial Department

M69225

F/

REINALDO E. RIVERA, J.P.

FRED T. SANTUCCI

RANDALL T. ENG

CHERYL E. CHAMBERS, JJ.

2007-10104 The People, etc., ex rel., James Burgess, appellant, v Robert Ercole, etc., respondent. (Index No. 1595/07)

DECISION & ORDER ON MOTION Motion for Poor Person Relief and to Assign Counsel Habeas Corpus Proceeding

Renewed motion by the appellant pro se for leave to prosecute an appeal from an order of the Supreme Court, Dutchess County, dated July 31, 2007, 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 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 pursuant to statute (see CPLR 1102[b]), the stenographer of the trial court shall make and certify two transcripts of the proceedings, if any, of the trial or hearing and shall deliver one to the appellant's attorney and file the other with the Clerk of the trial court together with an affidavit of the fact and date of such delivery and filing; the appellant's counsel is directed to turn over said transcripts to the respondent when counsel serves the appellant's brief upon respondent; and it is further,

ORDERED that pursuant to statute (Judiciary Law § 35), the following named attorney is assigned as counsel to prosecute the appeal:

David Goodman, Esq.

Public Defender

22 Market Street

Poughkeepsie, New York 12601

and it is further,

ORDERED that the appellant's time to perfect the appeal is enlarged; assigned counsel shall prosecute 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 in the event the file has been sealed, it is hereby unsealed for the limited purpose of allowing assigned counsel or his representative access to the record for the purpose of preparing the appeal; 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 appeal is taken; and it is further,

ORDERED that payment of the filing fee is waived.

RIVERA, J.P., SANTUCCI, ENG, and CHAMBERS, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Appellant's address:

84 A 7447

Green Haven Corr. Fac.

P.O. Box 4000

Stormville, New York 12582