PRESENT: SCUDDER, P. J., CENTRA, FAHEY, PERADOTTO, AND CARNI, JJ.

DOCKET NO. CA 11-01137

IN THE MATTER OF MARCUS A. MICOLO, PETITIONER-APPELLANT, V ROBERT A. KIRKPATRICK, SUPERINTENDENT, WENDE CORRECTIONAL FACILITY, RESPONDENT-RESPONDENT.

Appellant having moved for leave to appeal to this Court, for permission to proceed as a poor person, and for assignment of counsel on the appeal taken herein from a judgment (denominated decision and order) of the Supreme Court entered in the Office of the Clerk of the County of Erie on April 18, 2011,

Now, upon reading and filing the affidavits of Marcus A. Micolo sworn to May 11, 2011, and May 27, 2011, and the notice of motion with proof of service thereof, and due deliberation having been had thereon,

It is hereby ORDERED that the motion insofar as it seeks leave to appeal to this Court is denied, and

It is further ORDERED that the motion insofar as it seeks permission to proceed as a poor person is denied, with leave to renew upon properly taking an appeal, and

It is further ORDERED that the motion insofar as it seeks assignment of counsel is denied.

Memorandum: Insofar as the motion seeks leave to appeal to this Court, it is denied because the appeal lies as of right. Petitioner has 30 days from the service of our order with notice of entry to file and serve a notice of appeal (see CPLR 5514 [a]; CPLR 5520 [a]; Matter of Sawma v Bane, 197 AD2d 938 [1993], appeal dismissed 82 NY2d 882 [1993], rearg denied 83 NY2d 846, 1001 [1994]). Assignment of counsel is not available.

Entered: June 23, 2011

Patricia L. Morgan, Clerk