Appellate Division: Second Judicial Department

M72166

E/sl

REINALDO E. RIVERA, J.P.

ROBERT A. LIFSON

FRED T. SANTUCCI

HOWARD MILLER, JJ.

2007-10239, 2008-01205 People of State of New York, respondent, v Danny Cuesta, appellant.

DECISION & ORDER ON MOTION

Motion by the appellant on appeals from an order of the Supreme Court, Nassau County, dated October 22, 2007 (Appellate Division Docket No. 2007-10239), and an order of the County Court, Suffolk County, dated October 23, 2007 (Appellate Division Docket No. 2008-01205), for leave to prosecute the appeal from the order dated October 23, 2007, as a poor person, and for the assignment of counsel to prosecute that appeal, to consolidate the appeals, and to enlarge the time to perfect the appeals.

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

ORDERED that the branch of the motion which is for leave to prosecute the appeal from the order dated October 23, 2007, as a poor person is denied as unnecessary, as the appellant was granted leave to proceed as a poor person in the County Court and, pursuant to Correction Law 168-n (3), his status as a poor person continues on appeal; and it is further,

ORDERED that the appeal from the order dated October 23, 2007 (Appellate Division Docket No. 2008-01205), 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 the stenographer of the trial court is directed promptly to make, certify, and file two transcripts of the proceedings of any hearing held in connection with the order dated October 23, 2007, except for those minutes previously transcribed and certified (see 22 NYCRR 671.9); and it is further,

ORDERED that the clerk of the trial court shall furnish one certified transcript of each of the proceedings to the appellant's counsel, without charge (see CPLR 1102[b]); assigned counsel is directed to turn over those transcripts to the respondent when counsel serves the appellant's brief on the respondent; 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 the filing fee is waived (see CPLR 1103[d]); and it is further,

ORDERED that the branch of the motion which is to assign counsel is granted and pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeal:

Diane E. Selker, Esq.

701 Nelson Avenue

Peekskill, New York 10566

and it is further,

ORDERED that upon service of a copy of this decision and order upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report prepared in connection with or considered by the trial court in connection with the appellant's risk level determination, including the recommendation sheet and any prior reports on the appellant which are incorporated or referred to in the report; 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 the branch of the motion which is to consolidate the appeals is granted to the extent that the appeals will be calendared together and will be argued or submitted on the same day; and it is further,

ORDERED that the branch of the motion which is to enlarge the time to perfect the appeals is granted, and the appellant's time to perfect the appeals 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.

RIVERA, J.P., LIFSON, SANTUCCI and MILLER, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Appellant's Address:

Please make inquiry to the State Inmate Locator

New York State Department of Correctional Services

Telephone: (518) 457-0043