Appellate Division: Second Judicial Department

M116935

E/sl

WILLIAM F. MASTRO, J.P.

PETER B. SKELOS

JOHN M. LEVENTHAL

SHERI S. ROMAN, JJ.

2010-11409 The People, etc., respondent, v Tristan Foster, appellant. (Ind. No. 3622/09)

ORDER TO SHOW CAUSE

Motion by the appellant pro se for leave to prosecute an appeal from a judgment of the Supreme Court, Kings County, rendered October 13, 2010, as a poor person, and for the assignment of counsel.

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

ORDERED that on the Court's own motion, the appellant is directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal on the ground that the notice of appeal is untimely (see CPL 460.10[1][a], 460.30), the appellant did not move for leave to file a late notice of appeal, and the appellant waived his right to appeal, by filing an affidavit on that issue with the Clerk of this Court on or before April 13, 2011; and it is further,

ORDERED that the appellant's motion is held in abeyance in the interim; and it is further,

ORDERED that the Clerk of this Court or his designee is directed to serve a copy of this order to show cause upon the appellant at his last known place of residence, or, if he is imprisoned, at the institution in which he is confined, and upon the District Attorney, by ordinary mail pursuant to CPL 470.60(2).

MASTRO, J.P., SKELOS, LEVENTHAL and ROMAN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court