Appellate Division: Second Judicial Department

M122018

E/ct

MARK C. DILLON, J.P.

RANDALL T. ENG

SANDRA L. SGROI

ROBERT J. MILLER, JJ.

2011-03336 The People, etc., respondent, v Cregory Cole, appellant. (Ind. No. 1/11)

DECISION & ORDER ON MOTION

Motion by the appellant pro se for poor person relief on an appeal from a judgment of the County Court, Nassau County, rendered March 17, 2011, and, in effect, for leave to prosecute the appeal pro se.

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 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 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; and this Court shall furnish those transcripts to 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 and file the reproduced copy with this Court, for delivery to the appellant; 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 file 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 the appellant cites or relies upon the probation report in a brief or motion in any other way, the appellant 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 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 in the event the file has been sealed, it is hereby unsealed for the limited purpose of allowing the appellant 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 the Clerk of the Court, or his assignee, shall 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 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 at the time the appellant serves and files his brief he shall file a waiver of his right to appellate counsel in the form set forth below, acknowledged before a notary public:

WAIVER OF RIGHT TO APPELLATE COUNSEL

I, Cregory Cole, 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. I understand that if I elect to waive my right to counsel and I am incarcerated at the time my appeal is heard, the Court will not permit me to present oral argument. 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 of things, write an appellate brief.

Cregory Cole

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 Cregory Cole, 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

DILLON, J.P., ENG, SGROI and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court