Appellate Division: Second Judicial Department

M200144

E/mv

JOHN M. LEVENTHAL, J.P.

LEONARD B. AUSTIN

SANDRA L. SGROI

ROBERT J. MILLER, JJ.

2015-00057, 2015-01919 The People, etc., respondent, v Oneil Mairs, appellant. (Ind. No. 676/11)

DECISION & ORDER ON MOTION

Motion by the appellant pro se for leave to prosecute an appeal from a resentence of the Supreme Court, Queens County, imposed January 7, 2015, as a poor person, and for the assignment of counsel. By order to show cause dated May 19, 2015, the appellant was directed to show cause before this Court why an order should or should not be made and entered dismissing that appeal on the ground that the notice of appeal from the resentence was untimely filed, counsel was assigned to respond to the order to show cause, and the motion was held in abeyance in the interim. Separate motion by the appellant pursuant to CPL 460.30 for an extension of time to take an appeal from the resentence, for leave to prosecute the appeal from the resentence as a poor person and for the assignment of counsel, and to consolidate the appeal from the resentence with an appeal from a judgment of the same court rendered December 16, 2014.

Upon the order to show cause and the papers filed in response thereto, and upon the papers filed in support of the appellant's motions and the papers filed in relation thereto, it is

ORDERED that the appellant's motions are granted; and it is further,

ORDERED that the motion to dismiss is denied; and it is further,

ORDERED that the papers filed in connection with the appellant's motion, inter alia, pursuant to CPL 460.30 are deemed to constitute a timely notice of appeal from the resentence; and it is further,

ORDERED that the appeals 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 in connection with the imposition of resentence in this action, 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 set forth above to the appellant's 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 defendant's resentencing, 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 in the event an issue as to the legality, propriety, or excessiveness of the resentence 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 the Court and the District Attorney's office 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 resentence:

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 appeals is enlarged; assigned counsel shall prosecute the appeals 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 appeals; 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.

LEVENTHAL, J.P., AUSTIN, SGROI and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

Appellant's Address:

15-A-0183

Clinton Corr. Fac.

P.O. Box 2001

Dannemora, N.Y. 12929