Appellate Division: Second Judicial Department

M154207

E/mv

MARK C. DILLON, J.P.

CHERYL E. CHAMBERS

L. PRISCILLA HALL

SYLVIA HINDS-RADIX, JJ.

2013-00808 The People, etc., respondent, v Donald Griffin, appellant. (Ind. No. 188/86)

DECISION & ORDER ON MOTION Motion for Poor Person Relief and to Assign Counsel

Motion by the appellant pro se for leave to prosecute an appeal from an order of the Supreme Court, Kings County, entered December 17, 2012, as a poor person, and for the assignment of counsel.

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

ORDERED that the parties are directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal from so much of the order entered December 17, 2012, as denied relief pursuant to CPL 440.10 on the ground that the portion of the order that denied that relief is not appealable either as of right or by permission (see CPL 450.10; 450.20), by filing an affirmation or an affidavit on that issue in the office of the Clerk of this Court on or before May 15, 2013; and it is further,

ORDERED that the Clerk of this Court or his designee is directed to serve a copy of this order to show cause upon the appellants' attorneys and upon the District Attorney, by ordinary mail pursuant to CPL 470.60(2); and it is further,

ORDERED that the motion is granted to the extent that poor person relief and the assignment of counsel is granted with respect to so much of the order as denied relief pursuant to CPL 440.30, and the motion is otherwise denied; and it is further,

ORDERED that the appeal 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 any hearing held in connection with the order entered December 17, 2012, 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 pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeal:

Lynn W. L. Fahey, Esq.

Appellate Advocates

2 Rector Street - 10th Floor

New York, New York 10006

and it is further,

ORDERED that the appellant's time to perfect the appeal is enlarged; assigned counsel shall prosecute the appeal expeditiously in accordance with this Court's rules (see 22 NYCRR 670.1, et seq.) and written directions; 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 assigned counsel is directed to serve a copy of this decision and order on motion upon the clerk of the court from which the appeal is taken.

DILLON, J.P., CHAMBERS, HALL and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

Appellant's Address:

87-A-0320

Orleans Corr. Fac.

3531 Gaines Basin Road

Albion, N.Y. 14411