Appellate Division: Second Judicial Department

M186384

E/ct

RANDALL T. ENG, P.J.

SHERI S. ROMAN

JEFFREY A. COHEN

ROBERT J. MILLER, JJ.

2014-07206, 2014-08115 The People, etc., respondent, D v Derek Malloy, appellant. (Ind. No. 60/14)

ECISION & ORDER ON APPLICATION

Motion by the appellant to continue a stay issued pursuant to CPL 530.45 by decision and order on motion of this Court dated July 30, 2014, under Appellate Division Docket No. 2014-07206, and for poor person relief and the assignment of counsel with respect to an appeal from a judgment of the Supreme Court, Kings County, rendered August 11, 2014, under Appellate Division Docket No. 2014-08115.

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

ORDERED that the motion is granted; and it is further,

ORDERED that the stay granted by the decision and order on motion of this Court dated July 30, 2014, is extended pending hearing and determination of the appeal on the same bail conditions as set forth in the decision and order on motion of this Court dated July 30, 2014; and it is further,

ORDERED that the stay shall terminate and be of no further effect as of April 21, 2015, and the defendant shall thereafter surrender himself to the Supreme Court, Kings County, so that execution of the sentence may take place, unless the appeal from the judgment rendered August 11, 2014, shall have been brought to argument or submitted to this Court, or unless this Court shall have extended this order; and it is further,

ORDERED that upon the termination of this stay as provided above, this order shall constitute authorization to any peace officer to arrest and deliver the defendant to the sentencing court for execution of sentence; 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 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 assigned 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 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 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 this Court and the respondent 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:

Seymour James, Jr., Esq.

The Legal Aid Society

199 Water Street - 5th Floor

New York, New York 10038

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 or her 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.

ENG, P.J., ROMAN, COHEN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court