Appellate Division: Second Judicial Department

M81338

S/sl

PETER B. SKELOS, J.P.

FRED T. SANTUCCI

WILLIAM E. McCARTHY

THOMAS A. DICKERSON, JJ.

2008-08568 The People, etc., respondent, v Oscar Mercado, appellant. (Ind. No. 01-01584)

DECISION & ORDER ON MOTION Motion for Leave to Serve Late Notice of Appeal, for Poor Person Relief & to Assign Counsel - Appeal from Resentence

On the court's own motion, it is

ORDERED that its decision and order on motion dated December 9, 2008, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor:

Motion by the appellant pro se pursuant to CPL 460.30 for an extension of time to take an appeal from a resentence of the County Court, Westchester County, imposed July 24, 2008, for leave to prosecute the appeal as a poor person, and for the assignment of counsel.

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

ORDERED that the branch of the motion which seeks an extension of time to take an appeal is denied as unnecessary. The notice of appeal was timely filed; and it is further,

ORDERED that the branch of the motion which seeks leave to prosecute the appeal as a poor person and for the assignment of counsel 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 the imposition of resentence in this action, 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 set forth above to the appellant's counsel, without charge (see CPL 460.70); 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 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 assigned counsel; 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 the defendant's sentencing, including the recommendation sheet and any prior reports on the defendant which are incorporated in or referred to in the report; and it is further,

ORDERED that in the event an issue as to the legality, propriety, or excessiveness of the sentence is raised on appeal, or if assigned counsel cites or relies upon the probation report in a brief or motion in any other way, counsel shall provide a complete copy of such report and any attachments to the court and the District Attorney's office prior to the filing of such brief or motion; and it is further,

ORDERED that pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeal:

Thomas T. Keating, Esq.

6 Chester Avenue

White Plains, New York 10601

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 or her 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 assigned counsel is directed to serve a copy of this order upon the Clerk of the court from which the appeal is taken.

SKELOS, J.P., SANTUCCI, McCARTHY, and DICKERSON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Appellant's Address:

02 A 6109

Five Points Corr. Fac.

Caller Box 400 - State Route 96

Romulus, New York 14541