Appellate Division: Second Judicial Department

M192308

V/

RUTH C. BALKIN, J.P.

SHERI S. ROMAN

SANDRA L. SGROI

HECTOR D. LASALLE, JJ.

2014-04291 People of State of New York, respondent, v Herbert Edney, appellant.

DECISION & ORDER ON MOTION

On the Court's own motion, it is

ORDERED that the decision and order on motion of this Court dated April 14, 2015, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor:

Motion by counsel assigned to represent the defendant in the Supreme Court, Nassau County, in connection with proceedings pursuant to Corrections Law § 168-n(3) to be relieved and to assign new counsel to prosecute an appeal from an order of the Supreme Court, Nassau County, dated March 28, 2014.

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 assigned counsel, Kent V. Moston, Esq., Legal Aid Society of Nassau County - Appeals Bureau, 40 Main Street, 3rd Floor, Hempstead, N.Y. 11550, is relieved and is directed to turn over all papers in this action to new counsel herein assigned; and it is further,

ORDERED that pursuant to County Law § 722 the following named attorney is assigned as new counsel to prosecute the appeal:

Richard M. Langone, Esq.

600 Old Country Road, Suite 328

Garden City, N.Y., 11530

and it is further,

ORDERED that the appellant was granted leave to proceed as a poor person in the Supreme Court and, pursuant to Correction Law 168-n (3), his status as a poor person continues on appeal; 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 hearing held in connection with the order dated March 28, 2014, except for those minutes previously transcribed and certified (see 22 NYCRR 671.9); and it is further,

ORDERED that the clerk of the trial court shall furnish one certified transcript of each of the proceedings to the appellant's counsel, without charge (see CPLR 1102[b]); 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 upon service of a copy of this order upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the pre-sentence report prepared in connection with or considered by the trial court in connection with the appellant's risk level determination, including the recommendation sheet and any prior reports on the defendant which are incorporated or referred to in the report; 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 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 the filing fee is waived (see CPLR 1102[d]); and it is further,

ORDERED that assigned counsel is directed to serve a copy of this order upon the clerk of the court from which the appeal is taken.

BALKIN, J.P., ROMAN, SGROI and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court