Appellate Division: Second Judicial Department

M170448

E/mv

WILLIAM F. MASTRO, J.P.

REINALDO E. RIVERA

SANDRA L. SGROI

JEFFREY A. COHEN, JJ.

2009-11361 People of State of New York, respondent, v Alex Rukasou, appellant.

DECISION & ORDER ON MOTION

On the Court's own motion, it is

ORDERED that the decision and order on motion of this Court dated January 21, 2014, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor:

Motion by the appellant to recall and vacate so much of a decision and order on motion of this Court dated July 3, 2013, as dismissed an appeal from a purported order of the Supreme Court, Richmond County, dated November 12, 2009, to deem the notice of appeal from that purported order to be a notice of appeal from an order of the same court dated December 6, 2013, for poor person relief, and for the assignment of counsel.

Upon the papers filed in support of the motion and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the branches of the motion which are to recall and vacate so much of the decision and order on motion of this Court dated July 3, 2013, as dismissed the appeal from the purported order dated November 12, 2009, and to deem the notice of appeal from that purported order to be a notice of appeal from the order dated December 6, 2013, are granted, so much of the decision and order on motion of this Court dated July 3, 2013, as dismissed the appeal from the purported order is recalled and vacated, and the notice of appeal from the purported order dated November 12, 2009, is deemed to be a notice of appeal from the order dated December 6, 2013 (see CPLR 5512[a]); and it is further,

ORDERED that the branches of the motion which are for poor person relief and for the assignment of counsel are granted; 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 dated December 6, 2013, 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 any hearing to the appellant's counsel, without charge (see CPLR 1102[b]); assigned counsel is directed to turn over that transcript to the respondent when counsel serves the appellant's brief on the respondent; and it is further,

ORDERED that pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeal:

Steven Banks, Esq.

The Legal Aid Society

199 Water Street - 5th Floor

New York, New York 10038

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 or considered by the trial court in connection with the appellant's risk level determination, including the recommendation sheet and any prior reports on the appellant which are incorporated or referred to in the report; 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 the filing fee is waived (see CPLR 1102[d]); 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.

MASTRO, J.P., RIVERA, SGROI and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court