Appellate Division: Second Judicial Department

M189498

T/ct

PETER B. SKELOS, J.P.

JOHN M. LEVENTHAL

JEFFREY A. COHEN

COLLEEN D. DUFFY, JJ.

2007-01085 The People, etc., respondent, v Maurice Frazier, appellant. (Ind. No. 731/06)

DECISION & ORDER ON MOTION

Motion by the appellant (1) to extend the time to respond to an order to show cause dated April 11, 2014, in which he was directed to show cause before this Court why an order should or should not be made and entered dismissing an appeal from a judgment of the County Court, Nassau County, rendered January 23, 2007, which was deemed abandoned pursuant to 22 NYCRR 670.8(f), and (2) to be provided with the transcripts of the minutes of the proceedings. In the order to show cause dated April 11, 2014, the appellant's pro se motion, in effect, to restore the appeal to active status and for leave to prosecute the appeal as a poor person and for the assignment of counsel was granted to the extent that counsel was assigned to respond to the order to show cause, and the appellant's motion was otherwise held in abeyance pending determination of this Court's motion to dismiss the appeal.

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

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

ORDERED that the appellant's time to serve and file an affidavit or affirmation in response to the order to show cause is extended until 60 days after the receipt of the transcripts of the proceedings, and/or affidavit that the making of any transcript is no longer possible, as set forth below; and it is further,

ORDERED that the stenographer of the trial court, or the trial court's designee if that stenographer is no longer available, 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, of the imposition of sentence in this action, and of the proceedings in connection with the execution of sentence, except for those minutes previously transcribed and certified (see 22 NYCRR 671.9), unless the making of any of such transcripts is no longer possible, in which case the stenographer of the trial court, or the trial court's designee, shall file with the clerk of the trial court an affidavit setting forth which proceeding(s) cannot be transcribed; and it is further,

ORDERED that in the event that the case was tried to a conclusion before a jury, the stenographer or the trial court's designee shall also (1) make, certify, and file two transcripts of the minutes of proceedings during jury selection, or (2) file with the clerk of the trial court an affidavit stating that the making of such transcripts is no longer possible; and it is further,

ORDERED that, with respect to each of the proceedings set forth above, the clerk of the trial court shall furnish to assigned counsel, Lynn W. L. Fahey, Esq., Appellate Advocates, 111 John Street - 9th Floor, New York, New York 10038, (1) one certified transcript of the proceedings, without charge (see CPL 460.70), and/or (2) a copy of the affidavit stating that the making of a transcript is no longer possible; assigned counsel is directed to turn over any such transcripts to the respondent when counsel files papers in response to the order to show cause; 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 that assigned counsel cites or relies upon the probation report in papers filed in response to the order to show cause, counsel shall provide a complete copy of such report and any attachments to this Court and the respondent prior to the filing of such papers; 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 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 decision and order on motion upon the clerk of the court from which the appeal was taken.

SKELOS, J.P., LEVENTHAL, COHEN and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court