Appellate Division: Second Judicial Department

M197681

V/

RUTH C. BALKIN, J.P.

SHERI S. ROMAN

SANDRA L. SGROI

HECTOR D. LASALLE, JJ.

2013-09657 The People, etc., respondent, v Rudolph Kaval, appellant. (Ind. No. 1376/12)

DECISION & ORDER ON MOTION

Motion by the appellant to relieve assigned counsel and substitute retained counsel on an appeal from a judgment of the Supreme Court, Queens County, rendered October 8, 2013, and to continue his status as a poor person. The appellant was granted poor person relief on November 10, 2014, and the following named attorney was assigned as counsel to prosecute the appeal:

Lynn W. L. Fahey, Esq.

Appellate Advocates

111 John Street - 9th Floor

New York, New York 10038

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

ORDERED that the branch of the motion which is to relieve assigned counsel and substitute retained counsel is granted, and the following named attorney is substituted as retained counsel:

Malvina Nathanson, Esq.

40 Exchange Place - Suite 2010

New York, New York 10005-2790

and it is further,

ORDERED that the branch of the motion which is to continue the appellant's status as a poor person is denied with leave to renew upon proper papers setting forth the amount and source of counsel fees paid to retained appellate counsel; and it is further,

ORDERED with leave to renew upon explanation of amount and source of funds to pay retained counsel, so much of the decision and order on motion of this Court dated November 10, 2014, as granted poor person relief to the appellant is vacated, and the appellant's former assigned counsel is directed to turn over all papers in the above-entitled action to the Clerk of the Court; 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 retained 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 retained 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 the appellant's time to perfect the appeal is enlarged; retained 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 retained 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 retained counsel is directed to serve a copy of this decision and order on motion 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