PRESENT: MARTOCHE, J. P., PERADOTTO, LINDLEY, PINE, AND GORSKI, JJ.

DOCKET NO. CA 10-00962

IN THE MATTER OF CHRIS APPLEWHITE, PETITIONER-APPELLANT, V HAROLD D. GRAHAM, SUPERINTENDENT OF AUBURN CORRECTIONAL FACILITY, RESPONDENT-RESPONDENT.

Appellant having moved for permission to proceed as a poor person and for assignment of counsel on the appeal taken herein from an order of the Supreme Court entered in the Office of the Clerk of the County of Cayuga on March 4, 2010,

Now, upon reading and filing the affidavit of Chris Applewhite sworn to April 12, 2010, the notice of motion with proof of service thereof, and due deliberation having been had thereon,

It is hereby ORDERED that the motion is denied insofar as it seeks assignment of counsel with respect to the appeal from the part of the order entered March 4, 2010 that converted a portion of the petition for a writ of habeas corpus into a CPLR article 78 petition and denied that portion of the petition, and

It is further ORDERED that the motion insofar as it seeks permission to proceed as a poor person by is granted, and

It is further ORDERED that the motion is granted insofar as it seeks assignment of counsel with respect to the appeal from the part of the order entered March 4, 2010 that denied that portion of the petition that remained a petition for a writ of habeas corpus.

Memorandum: Assignment of counsel is not available with respect to the appeal from Supreme Court's denial of appellant's CPLR article 78 petition.

Entered: August 23, 2010

Patricia L. Morgan, Clerk