Appellate Division: Second Judicial Department

M121043

E/sl

MARK C. DILLON, J.P.

JOHN M. LEVENTHAL

L. PRISCILLA HALL

PLUMMER E. LOTT, JJ.

2009-07522 The People, etc., respondent, v Herburtho Benjamin, appellant. (Ind. No. 3707/08)

DECISION & ORDER ON MOTION

Motion by the appellant to relieve assigned counsel on an appeal from a judgment of the Supreme Court, Kings County, rendered July 16, 2009. The appellant's motion to dispense with printing and for assignment of counsel was granted on May 14, 2010, and the following named attorney was assigned as counsel 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; and said assigned counsel is directed to turn over all papers in the action to retained counsel:

James Layton Koenig, Esq.

305 Broadway, Suite 1400

New York, New York 10007

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. Retained counsel 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 upon service of a copy of this order upon it, the Department of Probation is hereby authorized and directed to provide retained 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 in 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 retained 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 retained counsel or his or her 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 retained 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., LEVENTHAL, HALL and LOTT, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court