Appellate Division: Second Judicial Department

M73493

T/sl

ROBERT A. SPOLZINO, J.P.

STEVEN W. FISHER

EDWARD D. CARNI

THOMAS A. DICKERSON, JJ.

2008-03703 People of State of New York, respondent, v Donald Strong, appellant.

DECISION & ORDER ON MOTION

On the court's own motion, it is

ORDERED that its decision and order on motion dated July 11, 2008, in the above-entitled matter is recalled and vacated, and the following decision and order on motion is substituted therefor:

Motion by the appellant for leave to prosecute an appeal from an order of the Supreme Court, Queens County, dated June 28, 2005, 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 branch of the motion which is for leave to prosecute the appeal as a poor person is denied as unnecessary, as the appellant was granted leave to proceed as a poor person in the Supreme 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 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 any hearing held in connection with the order dated June 28, 2005, 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 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 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 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:

Steven Banks, Esq.

The Legal Aid Society

199 Water Street, 5th Floor

New York, New York 10038

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.

SPOLZINO, J.P., FISHER, CARNI, and DICKERSON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court