Appellate Division: Second Judicial Department

M188344

E/ct

SHERI S. ROMAN, J.P.

JEFFREY A. COHEN

SYLVIA O. HINDS-RADIX

HECTOR D. LASALLE, JJ.

2014-02764 The People, etc., appellant, v Andrew McElroy, respondent. (Ind. No. 55/13)

DECISION & ORDER ON MOTION

2015-00489

The People, etc., respondent,

v Andrew McElroy , appellant.

(Ind. No. 55/13)

Motion by Andrew McElroy pursuant to CPL 460.30 for an extension of time to take an appeal from a judgment of the Supreme Court, Kings County, rendered February 20, 2014, for leave to prosecute the appeal as a poor person, for the assignment of counsel, and to consolidate that appeal with an appeal from an order of the same court dated February 20, 2014. Separate motion by Andrew McElroy to enlarge the time to serve and file a brief with respect to the appeal from the order dated February 20, 2014.

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

ORDERED that the branches of the motion which are to extend the time to take the appeal, for leave to prosecute the appeal from the judgment rendered February 20, 2014, as a poor person, for the assignment of counsel with respect to that appeal are granted; and it is further,

ORDERED that the moving papers are deemed to constitute a timely notice of appeal; and it is further,

ORDERED that the appeal from the judgment rendered February 20, 2014, 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 from the judgment rendered February 20, 2014:

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 rendered February 20, 2014, 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; 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; and it is further,

ORDERED that the branch of the motion which is to consolidate the appeals is denied; and it is further,

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

ORDERED that the motion to enlarge the time to serve and file a brief with respect to the appeal from the order dated February 20, 2014, is granted, the time to serve and file the brief is enlarged until May 6, 2015, and on or before that date Andrew McElroy is directed to serve one copy of his brief and to file nine copies thereof.

ROMAN, J.P., COHEN, HINDS-RADIX and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court