Appellate Division: Second Judicial Department

M182334

V/

RANDALL T. ENG, P.J.

WILLIAM F. MASTRO

REINALDO E. RIVERA

PETER B. SKELOS

MARK C. DILLON, JJ.

2014-05910, 2014-07920 The People, etc., respondent, v Stephen Mitchell, appellant. (Ind. No. 4743/10)

ORDER TO SHOW CAUSE

Motion by the appellant pro se for leave to prosecute appeals from a judgment of the Supreme Court, Kings County, rendered May 23, 2014, and an order of the same court dated July 11, 2014, 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 on the Court's own motion, the appellant is directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal from the order on the ground that the order is neither appealable as of right or by permission (see CPL 450.10, 450.15), by filing an affirmation or an affidavit on that issue in the office of the Clerk of this Court on or before February 4, 2015; and it is further,

ORDERED that the branch of the motion which is for leave to prosecute the appeal from the judgment as a poor person is granted, and that 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 the proceedings of any pretrial hearings, of the plea of guilty or of the trial, and of the imposition of sentence in this action, 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; 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 order 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 appellant's sentencing, including the recommendation sheet and any prior reports on the appellant 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, 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 the branch of the motion which is for the assignment of counsel is granted to the extent that the following named attorney is assigned as counsel with respect to the appeal from the judgment and assigned to respond to the order to show cause, pursuant to County Law § 722:

Lynn W. L. Fahey, Esq.

Appellate Advocates

111 John Street - 9th Floor

New York, New York 10038

and it is further,

ORDERED that the appellant's time to perfect the appeal from the judgment 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 or responding to the order to show cause; 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 order upon the clerk of the court from which the appeal is taken; and it is further,

ORDERED that the appellant's motion is otherwise held in abeyance pending determination of this Court's motion to dismiss the appeal from the order; and it is further,

ORDERED that the Clerk of this Court or her designee is directed to serve a copy of this order upon the appellant at his last known place of residence or, if he is imprisoned, at the institution in which he is confined, upon the attorney who last appeared for him, upon the attorney named above, and upon the District Attorney, by ordinary mail pursuant to CPL 470.60(2).

ENG, P.J., MASTRO, RIVERA, SKELOS and DILLON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

Appellant's Address:

14-A-3640

Downstate Corr. Fac.

121 Red Schoolhouse Road

P.O. Box 445

Fishkill, N.Y. 12524