Appellate Division: Second Judicial Department

M122980

E/sl

REINALDO E. RIVERA, J.P.

CHERYL E. CHAMBERS

L. PRISCILLA HALL

PLUMMER E. LOTT, JJ.

2010-07773, 2010-08439, 2010-08768, 2010-08771 The People, etc., respondent, v Alex Flores, appellant. (Appeal No. 1) The People, etc., respondent, v Lucio Ramirez, appellant. (Appeal No. 2) The People, etc., respondent, v Benigno Aguilar, appellant. (Appeal No. 3) The People, etc., respondent, v Emmanuel Flores, appellant. (Appeal No. 4) (Ind. No. 09-00605)

DECISION & ORDER ON MOTION

Motion by the appellants to consolidate appeals from four judgments of the County Court, Orange County, rendered August 6, 2010, August 9, 2010, and August 31, 2010 (two judgments), respectively, and for poor person relief.

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

ORDERED that the branch of the motion which is to consolidate the appeals is granted on condition that on or before August 19, 2011, each appellant shall file with the Clerk of this Court a separate duly notarized affidavit setting forth the following information:

That he and his co-appellants have retained Leonard J. Levenson to represent them on appeal; that the appellant has discussed with Mr. Levenson the possibility that a conflict of interest could arise in connection with his joint representation; that the appellant is satisfied at this point that no conflict exists; that if a conflict arises the appellant would have the right to retain separate counsel; and that he understands that if Mr. Levenson continues to represent him and his co-appellants and his appeal is determined based on that joint representation, he could waive any claim that the dual representation constituted a conflict of interest.

and it is further,

ORDERED that the branch of the motion which is for poor person relief is denied as unnecessary (see 22 NYCRR 670.9[d][1][viii]) with respect to leave to dispense with printing, and is otherwise granted; and it is further,

ORDERED that the appeals will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the appellants' 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, if any, of any pretrial hearings, of the pleas of guilty or of the trial, and of the imposition of sentences 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 appellants' counsel, without charge (see CPL 460.70); retained counsel is directed to turn over those transcripts to the respondent when counsel serves the appellants' 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 retained counsel; 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 counsel with a copy of the pre-sentence report(s) prepared in connection with the defendants' sentencing, including the recommendation sheet(s) and any prior reports on the defendants which are incorporated or referred to in the report(s); and it is further,

ORDERED that in the event an issue as to the legality, propriety or excessiveness of the sentences is raised on the appeals, or if counsel cites or relies upon the probation report(s) in a brief or motion in any other way, counsel shall provide a complete copy of such report(s) 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 retained counsel is directed to serve a copy of this order upon the Clerk of the court from which the appeals are taken; and it is further,

ORDERED that the appellants' time to perfect the appeals is enlarged. Retained counsel shall prosecute the appeals expeditiously in accordance with this Court's rules (see 22 NYCRR 670.1, et seq.) and written directions.

RIVERA, J.P., CHAMBERS, HALL and LOTT, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court