PRESENT: SCUDDER, P.J., HURLBUTT, SMITH, AND CENTRA, JJ.

DOCKET NO. CA 09-02294

IN THE MATTER OF EMMANUEL D. PATTERSON, PETITIONER-APPELLANT, V JAMES L. BERBARY, SUPERINTENDENT, COLLINS CORRECTIONAL FACILITY, ET AL., RESPONDENTS-RESPONDENTS.

Appellant having moved for permission to appeal to this Court and to proceed as a poor person on the appeal taken herein from an order of the Supreme Court entered in the Office of the Clerk of the County of Erie on September 18, 2009, and for assignment of counsel,

Now, upon reading and filing the affidavits of Emmanuel Patterson sworn to October 18, 2009, the notices of motion with proof of service thereof, and due deliberation having been had thereon,

It is hereby ORDERED that the motion for permission to proceed as a poor person be, and the same hereby is, granted, and the motions are otherwise denied.

Memorandum: Assignment of counsel is not available. That part of the motion that seeks leave to appeal is denied because the appeal lies as of right. Petitioner has 30 days from the service of our order with notice of entry to file and serve a notice of appeal (see CPLR 5514 [a]; Matter of Sawma v Bane, 197 AD2d 938 [1993], appeal dismissed 82 NY2d 882 [1993], rearg denied 83 NY2d 846, 1001 [1994]).

Entered: December 2, 2009

Patricia L. Morgan, Clerk