PRESENT: SCUDDER, P.J., HURLBUTT, MARTOCHE, SMITH, AND CENTRA, JJ.

KA 05-02216 & KA 08-00933
Indictment No: 2004-1642

PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V XAVIER PRIMM, DEFENDANT-APPELLANT.

Appellant having moved for an extension of time to perfect the appeal taken from the judgment of Supreme Court entered in the Office of the Clerk of the County of Erie on July 8, 2005, and for other relief,

Now, upon reading and filing the affirmation of Thomas Theophilos, dated March 9, 2008, the notice of motion with proof of service thereof, and due deliberation having been had thereon,

It is hereby ORDERED that the motion be and the same hereby is granted to the extent that appellant shall perfect the appeal on or before July 14, 2008, and in the event of failure to so perfect, the appeal is hereby dismissed without further order, and

It is further ORDERED that the notice of appeal filed on August 10, 2005 in the Office of the Clerk of the County of Erie and served upon the District Attorney's Office on August 5, 2005 is deemed timely, and

It is further ORDERED that the above referenced notice of appeal from the judgment rendered July 8, 2005 is deemed to be an application for an extension of time to take an appeal from the judgment rendered March 4, 2005, and the application is granted, and

It is further ORDERED that Thomas Theophilos is hereby directed to file and serve that notice of appeal on or before June 13, 2008, and

It is further ORDERED that the appeal from the judgment rendered March 4, 2005 may be prosecuted upon one record and ten copies of the appellant's brief, and

Thomas P. Theophilos, Esq.

1201 Colvin Boulevard

Suite 1

Buffalo, NY 14223

is hereby assigned as counsel to conduct the appeal, and

It is further ORDERED that the Clerk of Erie County is hereby directed to provide Thomas P. Theophilos with copies of all papers and transcripts of stenographic or audio taped minutes, if any, of the proceedings upon which the appeal from the judgment rendered March 4, 2005 is based, and

It is further ORDERED that the appellant shall perfect the appeal from the judgment rendered on March 4, 2005 on or before July 14, 2008, and in the event of a failure to so perfect, the appeal is hereby dismissed without further order.

Entered: May 15, 2008

JoAnn M. Wahl, Clerk