Appellate Division: Second Judicial Department

M187277

E/sl

REINALDO E. RIVERA, J.P.

L. PRISCILLA HALL

SHERI S. ROMAN

SYLVIA O. HINDS-RADIX, JJ.

2014-06513, 2015-00921, 2015-00922 The People, etc., respondent, v Shawn B. (Anonymous), appellant. (Ind. No. 151/12)

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

On the Court's own motion, it is

ORDERED that the decision and order on motion of this Court dated October 30, 2014, and the decision and order on motion of this Court dated January 23, 2015, in the above-entitled case are recalled and vacated, and the following decision and order on motion is substituted for those decisions and orders on motion.

Motion by the appellant for leave to prosecute appeals from an order of the County Court, Dutchess County, dated August 8, 2013, a purported judgment of the same court rendered July 10, 2012, and a letter from a Justice of the same court dated June 11, 2014, as a poor person, 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 on the Court's own motion, the notice of appeal from the order dated August 8, 2013, is deemed to be an application for leave to appeal and leave to appeal is granted (see CPL 330.20[21]); and it is further,

ORDERED that on the Court's own motion, the appeal from the purported judgment is dismissed, as no judgment was rendered in the above-entitled action on July 10, 2012; and it is further,

ORDERED that on the Court's own motion, the appeal from the letter from a Principal Law Clerk of a Justice of the same court dated June 11, 2014, is dismissed as the letter is neither appealable as of right or by permission (see CPL 450.10, 450.15); and it is further,

ORDERED that the motion is granted with respect to the appeal from the order dated August 8, 2013, and otherwise denied as academic; and it is further,

ORDERED that the appeal from the order dated August 8, 2013, 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 pursuant to statute (CPLR 1102[b]) the stenographer of the trial court is directed promptly to make, certify, and file two transcripts of the proceedings in connection with the order dated August 8, 2013, except for those minutes previously transcribed and certified; 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; 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 pursuant to Judiciary Law § 35 the following named attorney is assigned as counsel to prosecute the appeal from the order dated August 8, 2013:

Bruce A. Petito, Esq.

2 Austin Court

Poughkeepsie, N.Y. 12603

and it is further,

ORDERED that the appellant's time to perfect the appeal from the order dated August 8, 2013, 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 County Court, Dutchess County.

RIVERA, J.P., HALL, ROMAN and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court