Appellate Division: Second Judicial Department

M174565

E/sl

L. PRISCILLA HALL, J.P.

LEONARD B. AUSTIN

SANDRA L. SGROI

COLLEEN D. DUFFY, JJ.

2012-09416, 2014-05006 The People, etc., respondent, v Joshua B. (Anonymous), appellant. (Ind. Nos. 8069/11, 1791/12)

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

Motion by the appellant to amend a notice of appeal from a judgment of the Supreme Court, Kings County, rendered September 26, 2012, as amended October 1, 2012, under Ind. No. 8069/11 to be also from a judgment of the same court rendered September 26, 2012, under Ind. No. 1791/12, and for poor person relief and the assignment of counsel with respect to the appeal from the judgment rendered under Ind. No. 1791/12.

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 branch of the motion which is to amend the notice of appeal is granted to the extent that the notice of appeal from the judgment rendered under Ind. No. 8069/11 is deemed to be also from the judgment rendered under Ind. No. 1791/12, and the motion is otherwise denied; and it is further,

ORDERED that the appeals will be calendared together and will be argued or submitted on the same date; and it is further,

ORDERED that the branches of the motion which are for poor person relief and the assignment of counsel with respect to the appeal from the judgment rendered under Ind. No. 1791/12 are granted, and the appeal from the judgment rendered under Ind. No. 1791/12 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 any pretrial hearings, of the plea of guilty or of the trial, and of the imposition of sentence in the action under Ind. No. 1791/12, except for those minutes previously transcribed and certified (see 22 NYCRR 671.9); and it is further,

ORDERED that in the event that the case was tried to a conclusion before a jury, the stenographer shall also make, certify, and file two transcripts of the minutes of proceedings during jury selection with respect to the appeal under Ind. No. 1791/12; 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 sentencing under Ind. No. 1791/12, including the recommendation sheet and any prior reports on the defendant which are incorporated in 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 sentence is raised on the appeal from the judgment under Ind. No. 1791/12, 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 from the judgment under Ind. No. 1791/12:

Scott A. Rosenberg

General Counsel, the Legal Aid Society

199 Water Street, 5th Floor

New York, N.Y. 10038

and it is further,

ORDERED that the appellant's time to perfect the appeal from the judgment under Ind. No. 1791/12 is enlarged; assigned counsel shall prosecute that 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 or her representative access to the record for the purpose of preparing the appeal from the judgment under Ind. No. 1791/12; 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 appeals are taken.

HALL, J.P., AUSTIN, SGROI and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court