Appellate Division: Second Judicial Department

M71079

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STEVEN W. FISHER, J.P.

EDWARD D. CARNI

WILLIAM E. McCARTHY

ARIEL E. BELEN, JJ.

2007-11726 The People, etc., respondent, v Mark Birthwright, appellant. (Ind. No. 06-02634)

DECISION & ORDER ON MOTION

Motion by the appellant pro se for leave to prosecute an appeal from a judgment of the County Court, Suffolk County, rendered March 28, 2007, as a poor person and for the assignment of counsel. By order to show cause dated April 7, 2008, the appellant was directed to show cause before this court why an order should or should not be made and entered dismissing the appeal on the ground that the notice of appeal was untimely filed, and the motion for leave to appeal 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 opposition or in relation thereto, and upon the papers filed in support of the appellant's motion and the papers filed in relation thereto, it is

ORDERED that the motion to dismiss the appeal is granted and the appeal is dismissed (CPL 460.10); and it is further,

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

FISHER, J.P., CARNI, McCARTHY and BELEN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court