Appellate Division: Second Judicial Department

M128339

E/sl

REINALDO E. RIVERA, J.P.

THOMAS A. DICKERSON

RANDALL T. ENG

SHERI S. ROMAN, JJ.

2010-03777 The People, etc., respondent, v Baruch Lebovits, appellant. (Ind. No. 11393/08)

DECISION & ORDER ON MOTION

Motion by the respondent to strike stated portions of the appellant's brief on an appeal from a judgment of the Supreme Court, Kings County, rendered April 12, 2010, on the ground that they refer to matter dehors the record. Cross motion by the appellant, in effect, to hold the appeal in abeyance pending hearing and determination of his motion pursuant to CPL 440.10 by the Supreme Court, Kings County.

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

ORDERED that the motion is granted to the extent that the following material is stricken from the appellant's brief, and the motion is otherwise denied:

(1) material starting with the second paragraph on page 3, continuing on page 4, and ending with the first four lines on page 5;

(2) the second paragraph on page 6;

(3) footnote 5 on pages 6 and 7;

(4) second sentence of the second paragraph on page 7;

(5) footnote 8 on page 12;

(6) footnote 11 on page 20;

(7) second complete paragraph on page 22;

(8) sentence beginning at the end of page 22 with the words "For the extortion" and ending on page 23 with the words "consecutive sentences";

(9) footnote 12 on page 25;

(10) first complete sentence on page 30;

(11) second sentence of the last paragraph on page 31;

(12) footnote 17 on page 35;

(13) footnote 22 on page 46;

(14) footnote 23 on page 47;

(15) footnote 27 on page 60; and

(16) second sentence in the second paragraph on page 60; and it is further,

ORDERED that on or before December 9 2011, the appellant shall remove the stricken material from the copies of the brief filed with the Clerk of the Court or serve and file a replacement that does not contain the stricken material; and it is further,

ORDERED that on the Court's own motion, the respondent's time to serve and file a brief is enlarged until January 9 2012, and the respondent's brief must be served and filed on or before that date; and it is further,

ORDERED that the cross motion is denied.

RIVERA, J.P., DICKERSON, ENG and ROMAN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court