Appellate Division: Second Judicial Department

M81621

E/sl

REINALDO E. RIVERA, J.P.

HOWARD MILLER

JOSEPH COVELLO

WILLIAM E. McCARTHY, JJ.

2008-09525 The People, etc., respondent, v Robert Dominguez, appellant. (Ind. No. 1272/02)

DECISION & ORDER ON MOTION

Motion by the appellant pro se for leave to prosecute an appeal from an order of the Supreme Court, Kings County, dated July 28, 2008, which denied his motion to be resentenced pursuant to Chapter 643 of the Laws of 2005, as a poor person, and for the assignment of counsel. By order to show cause dated December 12, 2008, the appellant was directed to show cause before this court why an order should or should not be entered dismissing the appeal on the ground that the notice of appeal was untimely (see CPL 460.10[1][a], 460.30), and the appellant has not sought leave to file a late notice of appeal, and the motion for leave to proceed as a poor person and the assignment of counsel was held in abeyance in the interim.

Upon the order to show cause and the papers filed in response thereto, and upon the papers filed in support of the appellant's motion and the papers filed in opposition thereto, it is

ORDERED that the motion to dismiss the appeal is denied as the notice of appeal was timely filed; and it is further,

ORDERED that the appellant's motion for 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 any hearing held in connection with the order dated July 28, 2008, 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 pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeal:

Lynn W. L. Fahey, Esq.

Appellate Advocates

2 Rector Street - 10th Floor

New York, New York 10006

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

RIVERA, J.P., MILLER, COVELLO and McCARTHY, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court