Appellate Division: Second Judicial Department

M109199

E/sl

JOSEPH COVELLO, J.P.

JOHN M. LEVENTHAL

ARIEL E. BELEN

L. PRISCILLA HALL, JJ.

2009-04687 The People, etc., respondent, v Rodolfo Hernandez, appellant. (Ind. No. 106/08)

DECISION & ORDER ON MOTION

Motion by the appellant pro se for leave to prosecute an appeal from a judgment of the Supreme Court, Richmond County rendered May 1, 2009, as a poor person, and, in effect, for leave to proceed pro se.

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

ORDERED that the branch of the motion which is for leave to prosecute the appeals as a poor person is granted; and it is further,

ORDERED that the appeal 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 any pretrial hearings, of the plea of guilty or of the trial, and of the imposition of sentence in this action, except for those minutes previously transcribed and certified (see 22 NYCRR 671.9); and it is further,

ORDERED that in the event that the case was tried to a conclusion before a jury, the stenographer shall also make, certify, and file two transcripts of the minutes of proceedings during jury selection; 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 Clerk of this court, without charge (see CPL 460.70); the Clerk of this court shall deliver those minutes to the person in charge of the institution wherein the appellant is incarcerated for examination by the appellant; the transcript shall be returned to this court when the appellant files his brief or informs the court that he is withdrawing the appeal; 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 the Clerk of this court; and it is further,

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

ORDERED that the Clerk of this court, or his designee, is directed to serve a copy of this order upon the Clerk of the court from which the appeal is taken; and it is further,

ORDERED that the branch of the motion which is for leave to proceed pro se is granted on condition that the appellant file a waiver of the right to appellate counsel, properly acknowledged before a notary, in the form set forth below, when he files his brief:

WAIVER OF RIGHT TO APPELLATE COUNSEL

I understand that I have the right to be represented by an attorney in prosecuting my appeal. If I cannot afford to retain counsel, one will be assigned to represent me at State expense. Knowing these rights I voluntarily elect to waive them and to represent myself on the appeal. I have not been forced to waive my rights and I believe myself to be of sufficient intelligence and ability to properly protect my own interests without the assistance of a lawyer to, among other things, write an appellate brief.

Rodolfo Hernandez

State of

County of

On the day of in the year before me, the undersigned, a Notary Public in and for said State, personally appeared Rodolfo Hernandez, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same, and that by his signature on the instrument, the individual executed the instrument.

Notary Public

COVELLO, J.P., LEVENTHAL, BELEN and HALL, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court