Appellate Division: Second Judicial Department

M111635

E/sl

MARK C. DILLON, J.P.

RUTH C. BALKIN

PLUMMER E. LOTT

LEONARD B. AUSTIN, JJ.

2008-00971 The People, etc., respondent, v Denworth Davidson, appellant. (Ind. No. 161-05)

DECISION & ORDER ON MOTION

On the Court's own motion, it is

ORDERED that its decision and order on motion dated August 18, 2010, in the above-entitled matter, which determined motions by the appellant pro se and former retained counsel, on an appeal from a judgment of the Supreme Court, Queens County, rendered January 9, 2008, is amended (1) by adding to the last sentence of the first paragraph the following ", and, in effect, for poor person relief" and (2) by deleting therefrom the fourth and fifth decretal paragraphs and substituting therefor the following paragraphs:

ORDERED that pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeal:

Steven Banks, Esq.

Legal Aid Society

199 Water Street - 5th Floor

New York, New York 10038

and it is further,

ORDERED that the branch of the motion by the appellant pro se which is, in effect, for poor person relief 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 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 the decision and order on motion dated August 18, 2010, as well as a copy of the decision and order on motion dated November 30, 2010, amending that 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 sentencing, including the recommendation sheet and any prior reports on the defendant which are incorporated 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 sentence 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 in the event the file has been sealed, it is hereby unsealed for the limited purpose of allowing assigned counsel or his representative access to the record for the purpose of preparing the appeal; 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 appeal is taken.

DILLON, J.P., BALKIN, LOTT and AUSTIN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court