Appellate Division: Second Judicial Department

M104760

S/sl

A. GAIL PRUDENTI, P.J.

REINALDO E. RIVERA

FRED T. SANTUCCI

HOWARD MILLER, JJ.

2009-04097 The People, etc., respondent, v Mikhail Mallayev, appellant. (Ind. No. 336/08)

DECISION & ORDER ON MOTION

On the court's own motion, it is

ORDERED that its decision and order on motion dated June 22, 2010, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor:

Motion by the appellant to relieve counsel assigned to prosecute an appeal from a judgment of the Supreme Court, Queens County, rendered April 21, 2009, and to substitute Tehilah Hannah Rae Berman, Esq., as pro bono counsel. The appellant's motion to dispense with printing and for assignment of counsel was granted on September 21, 2009, and the following named attorney was assigned as counsel to prosecute the appeal:

Steven Banks, Esq.

The Legal Aid Society

199 Water Street - 5th Floor

New York, New York 10038

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

ORDERED that the motion is granted on condition that on or before July 23, 2010, the appellant shall file with the Clerk of this court a duly notarized affidavit setting forth the following information:

That Tehilah Hannah Rae Berman, Esq., has agreed to represent him on appeal; that Ms. Berman has performed work on the appeal of his co-defendant, Mazoltuv Borokhova; that the appellant has discussed with Ms. Berman the possibility that a conflict of interest could arise in connection with her joint representation; that the appellant is satisfied at this point that no conflict exists; that if a conflict arises the appellant would have the right to retain separate counsel; and that he understands that if Ms. Berman continues to represent him and Ms. Borokhova and his appeal is determined based on that joint representation, he could waive any claim that the dual representation constituted a conflict of interest;

and it is further,

ORDERED that assigned counsel is directed to turn over all papers in the action to pro bono counsel:

Tehilah Hannah Rae Berman, Esq.

653 East 17th Street

Brooklyn, New York 11230

and it is further,

ORDERED that the appellant's poor person status is continued; and it is further,

ORDERED that the appellant's time to perfect the appeal is enlarged. Pro bono counsel shall prosecute the appeal expeditiously in accordance with this court's rules (see 22 NYCRR 670.1, et seq.) and written directions.

PRUDENTI, P.J., RIVERA, SANTUCCI and MILLER, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court