Appellate Division: Second Judicial Department

M76014

F/nl

A. GAIL PRUDENTI, P.J.

ANITA R. FLORIO

RUTH C. BALKIN

RANDALL T. ENG, JJ.

2005-06948 The People, etc., respondent, v Jose Hernandez, appellant. (Ind. No. 3270/04)

DECISION & ORDER ON MOTION Motion for Poor Person Relief and to Assign Counsel Appeal from Judgment

Motion by the appellant pro se for leave to prosecute an appeal from a judgment of the Supreme Court, Kings County, rendered June 27, 2005, as a poor person, for leave to proceed pro se, and cross-motion by the respondent to dismiss the appeal as abandoned.

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

ORDERED 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 the stenographer of the trial court is directed promptly to make, certify, and file two transcripts of the proceedings of any pretrial hearings, of the plea of guilty or of the trial, and of the imposition of sentence in this action, except for those minutes previously transcribed and certified (see 22 NYCRR 671.9); and it is further,

ORDERED that in the event that the case was tried to a conclusion before a jury, the stenographer shall also make, certify, and file two transcripts of the minutes of proceedings during jury selection; and it is further,

ORDERED that the clerk of the trial court shall furnish the certified transcripts of the proceedings, if any, to the clerk of this court, and the clerk of this court shall deliver those minutes to the person in charge of the institution wherein the appellant is incarcerated for examination by the appellant; the transcript shall be returned to this court when the appellant files a brief or informs this court that no brief will be filed; and it is further,

ORDERED that the appellant shall file nine copies of the brief and serve one copy on the District Attorney; and it is further,

ORDERED that in the event the stenographer has already prepared a copy of any of the minutes for a codefendant, then the clerk of the trial court is directed to reproduce a copy thereof for transmission to this court ; and it is further,

ORDERED that the appellant's time to perfect the appeal is enlarged; and it is further,

ORDERED that in the event the appellant elects to perfect the appeal pro se, he shall file along with his brief, a properly executed waiver of his right to appellate counsel, which waiver shall read as follows:

WAIVER OF RIGHT TO APPELLATE COUNSEL

I have been advised that (1) I have the right to be represented by an attorney in prosecuting my appeal, and (2) if I cannot afford to retain counsel, one will be assigned to represent me at State expense. Knowing these rights I have voluntarily elected to waive them and to represent myself on the appeal. I have not been forced to waive my rights and I believe myself to be of sufficient intelligence and ability to properly protect my own interests without the assistance of a lawyer to, among other things, write an appellate brief.

Jose Hernandez

State of )

) ss.

County of )

On the day of in the year before me, the undersigned, a Notary Public in and for said State, personally appeared Jose Hernandez, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same, and that by his signature on the instrument, the individual executed the instrument.

Notary Public

and it is further,

ORDERED that the cross-motion by the respondent to dismiss the appeal as abandoned is denied, and it is further,

ORDERED that the Clerk of this court, or his designee, is directed to serve a copy of this order upon the Clerk of the court from which the appeal is taken.

PRUDENTI, P.J., FLORIO, BALKIN, and ENG, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Appellant's address:

05 R 3029

Hudson Corr. Fac.

P.O. Box 576

Hudson, New York 12534