Appellate Division: Second Judicial Department

M190663

T/sl

WILLIAM F. MASTRO, J.P.

LEONARD B. AUSTIN

ROBERT J. MILLER

JOSEPH J. MALTESE, JJ.

2006-05908 The People, etc., respondent, v Sally Miller, appellant. (Ind. No. 10647/96)

ORDER TO SHOW CAUSE

Motion by the appellant pro se for leave to prosecute an appeal from a judgment of the Supreme Court, Kings County, rendered May 4, 2006, as a poor person, and for the assignment of counsel. Separate motion by the appellant pro se pursuant to CPL 460.30 for an extension of time to take an appeal from the judgment rendered May 4, 2006.

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

ORDERED that the motion to extend the time to take the appeal is denied as unnecessary, as the appeal was timely taken (see CPL 460.10); and it is further,

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 on the ground that the appellant has abandoned the appeal (see 22 NYCRR 670.8[f]), by filing an affirmation or an affidavit on that issue in the office of the Clerk of this Court within 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 following named attorney is assigned as counsel to respond to the order to show cause:

Lynn W. L. Fahey, Esq.

Appellate Advocates

111 John Street - 9th Floor

New York, New York 10038

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, and of the imposition of sentence in this action, 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 trail 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 (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 this 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 order to show cause 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 this 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 this 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 to show cause upon the clerk of the court from which the appeal is taken; and it is further,

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

ORDERED that the appellant's motion for leave to prosecute the appeal as a poor person, and for the assignment of counsel, is held in abeyance in the interim.

MASTRO, J.P., AUSTIN, MILLER and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court