Appellate Division: Second Judicial Department

M91823

E/sl

STEVEN W. FISHER, J.P.

MARK C. DILLON

JOSEPH COVELLO

RANDALL T. ENG, JJ.

2009-02476 The People, etc., respondent, v Andrew Kerr, appellant. (Ind. No. 8388/07)

DECISION & ORDER ON MOTION

Motion by the appellant pro se for leave to prosecute an appeal from a purported judgment of the Supreme Court, Kings County, rendered February 5, 2009, as a poor person, and for the assignment of counsel. By order to show cause dated June 23, 2009, the appellant was directed to show cause before this court, why an order should or should not be entered dismissing the appeal from the purported judgment on the ground that no appeal lies from the purported judgment, as the purported judgment is nothing more than a proceeding to cause a judgment of the same court rendered April 3, 2008, to be brought to execution (see People v Crawford, 239 AD2d 514), and the motion for poor person relief and the assignment of counsel was held in abeyance in the interim. Application by the appellant, in effect, to deem the notice of appeal from the purported judgment of the Supreme Court, Kings County, rendered February 5, 2009, to be an application pursuant to CPL 460.30 for an extension of time to take an appeal from a judgment of the Supreme Court, Kings County, rendered April 3, 2008.

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

ORDERED that the application is granted and the notice of appeal from the purported judgment rendered February 5, 2009, is deemed to be an application pursuant to CPL 460.30 for an extension of time to take an appeal from a judgment of the Supreme Court, Kings County, rendered April 3, 2008, the application is granted, and the notice of appeal is deemed to be a timely notice of appeal from the judgment rendered April 3, 2008; and it is further,

ORDERED that the motion to dismiss the appeal is denied; and it is further,

ORDERED that the motion for leave to prosecute the appeal as a poor person and for the assignment of counsel is denied, with leave to renew upon proper papers, including the appellant's affidavit setting forth (1) the appellant's full financial situation including all assets, both real and personal, as well as any and all sources of income before conviction, (2) the amount and source of counsel fees paid to retained counsel, and (3) if on bail before conviction, the amount and source of the bail money, and if bail was the appellant's own money, what happened to the same after conviction.

FISHER, J.P., DILLON, COVELLO and ENG, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court