Appellate Division: Second Judicial Department

M130418

K/nl

REINALDO E. RIVERA, J.P.

JOHN M. LEVENTHAL

SHERI S. ROMAN

SANDRA L. SGROI, JJ.

2009-08759 The People, etc., respondent, v Henry Leyba, appellant. (Ind. No. 88-01377)

DECISION & ORDER ON MOTION

Appeal by the defendant from a resentence of the Supreme Court, Westchester County, imposed August 5, 2009.

Now, on the Court's own motion, it is

ORDERED that the appellant's replacement brief which was filed with the Clerk of this Court is stricken; and it is further,

ORDERED that Mitchell J. Baker is relieved as counsel, and he is directed to turn over all papers in his possession to new counsel assigned herein; and it is further,

ORDERED that Marianne Karas, Box 277, Armonk, N.Y., 10504, is assigned as counsel to perfect the appeal; and it is further,

ORDERED that the People are directed to furnish a copy of the certified transcript of the proceedings to the new assigned counsel; and it is further,

ORDERED that new counsel shall serve and file a brief on behalf of the appellant within 90 days of the date of this decision and order and the People shall serve and file their brief within 120 days of the date of this decision and order; by prior decision and order on motion of this Court, the defendant was granted leave to prosecute the appeal as a poor person, with the appeal to be heard on the original papers (including the certified transcript of the proceedings) and on the briefs of the parties, who were directed to file nine copies of their respective briefs and to serve one copy on each other; and it is further,

ORDERED that the new brief served and filed on behalf of the appellant shall only raise issues which are properly reviewable on the appeal from the resentence imposed August 5, 2009.

By decision and order on motion dated July 5, 2011, this Court granted the People's motion to strike the defendant's brief on the ground that it raised issues not properly before this Court on this appeal. In that decision and order on motion, this Court directed the defendant to serve and file a replacement brief that raised issues "only concerning the resentence imposed August 5, 2009." However, the replacement brief served and filed by the defendant, through assigned counsel Mitchell J. Baker, was virtually identical to the original brief that was previously stricken by this Court.

In light of the foregoing, upon this Court's own motion, we deem it appropriate to strike the replacement brief and relieve Mitchell J. Baker as assigned counsel. Moreover, we conclude that assignment of new counsel is warranted for the purpose of perfecting the instant appeal on behalf of the defendant, in accordance herewith.

RIVERA, J.P., LEVENTHAL, ROMAN and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court