Appellate Division: Second Judicial Department

M147740

V/

REINALDO E. RIVERA, J.P.

MARK C. DILLON

JOHN M. LEVENTHAL

CHERYL E. CHAMBERS, JJ.

2012-02831, 2012-04870 The People, etc., respondent, v Delroy Clayton, appellant. (Ind. No. 10407/10)

DECISION & ORDER ON MOTION

Motion by the appellant to relieve assigned counsel on an appeal from a judgment of the Supreme Court, Kings County, rendered March 7, 2012, and substitute retained counsel and to continue his poor person status, and for leave to prosecute an appeal from a resentence of the Supreme Court, Kings County, imposed May 9, 2012, as a poor person. The appellant's motion to dispense with printing and for assignment of counsel on the appeal from the judgment rendered March 7, 2012, was granted on May 30, 2012, and the following named attorney was assigned as counsel to prosecute the appeal:

Lynn W. L. Fahey, Esq.

Appellate Advocates

2 Rector Street - 10th Floor

New York, New York 10006

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

ORDERED that on the Court's own motion, the appeals are consolidated; and it is further,

ORDERED that the branch of the motion which is to relieve assigned counsel and to continue the appellant's poor person status on the appeal from the judgment rendered March 7, 2012, is granted, the appellant's poor person status is continued, and assigned counsel is directed to turn over all papers on the appeal from the judgment rendered March 7, 2012, to retained counsel:

Andrea Hirsch, Esq.

111 Broadway, Suite 1305

New York, N.Y. 10006

and it is further,

ORDERED that the branch of the motion which for leave to prosecute the appeal from the resentence imposed May 9, 2012, as a poor person is granted: and it is further,

ORDERED that the appeal from the resentence 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 the imposition of resentence in this action, except for those minutes previously transcribed and certified (see 22 NYCRR 671.9); 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 appellant's counsel, without charge (see CPL 460.70); assigned counsel is directed to turn over those transcripts to the respondent when counsel serves the appellant's 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 assigned counsel; and it is further,

ORDERED that upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report prepared in connection with the defendant's resentencing, 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 resentence is raised on appeal, or if assigned counsel cites or relies upon the probation report in a brief or motion in any other way, counsel 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 in the event the file has been sealed, it is hereby unsealed for the limited purpose of allowing assigned counsel 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 appellant's 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; and it is further,

ORDERED that retained counsel is directed to serve a copy of this decision and order on motion upon the clerk of the court from which the appeals are taken.

RIVERA, J.P., DILLON, LEVENTHAL and CHAMBERS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court