Appellate Division: Second Judicial Department

M102355

E/sl

STEVEN W. FISHER, J.P.

THOMAS A. DICKERSON

RANDALL T. ENG

ARIEL E. BELEN, JJ.

2009-07450, 2010-02915 The People, etc., respondent, v Clifford Desir, appellant. (Ind. No. 8123/07)

DECISION & ORDER ON MOTION

Motion by the appellant on appeals from a judgment of the Supreme Court, Kings County, rendered July 27, 2009, and a resentence of the same court imposed February 25, 2010, for leave to prosecute the appeal from the resentence as a poor person, for the assignment of counsel, and to amend the decision and order on motion dated October 21, 2009, granting poor person relief with respect to the judgment rendered July 27, 2009, and the decision and order on motion dated December 21, 2009, assigning counsel to reflect that the appellant is granted poor person and the assignment of counsel with respect to the resentence imposed February 25, 2010.

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

ORDERED that the motion is granted; and it is further,

ORDERED that the appeals 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 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 resentencing, 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 resentence 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 from the resentence:

Steven Banks, Esq.

The Legal Aid Society

199 Water Street - 5th Floor

New York, New York 10038

and it is further,

ORDERED that the appellant's time to perfect the appeals is enlarged; assigned counsel shall prosecute the appeals 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 appeals; 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 appeals are taken.

FISHER, J.P., DICKERSON, ENG and BELEN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court