Appellate Division: Second Judicial Department

M208940

E/ct

REINALDO E. RIVERA, J.P.

MARK C. DILLON

CHERYL E. CHAMBERS

THOMAS A. DICKERSON, JJ.

2015-09397 The People, etc., respondent, v Esmerilda Morales, appellant. (Ind. No. 10799/11)

DECISION & ORDER ON MOTION

Motion by the appellant pro se for leave to prosecute an appeal from a judgment of the Supreme Court, Kings County, rendered July 30, 2015, as a poor person, and for the assignment of counsel. By order to show cause dated December 23, 2015, the appellant was 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 notice of appeal from the judgment was untimely. Motion by the appellant pro se pursuant to CPL 460.30 for an extension of time to take the appeal, for poor person relief, and for the assignment of counsel.

Now, upon the order to show cause and the papers filed in response thereto, upon the papers filed in support of the appellant's first motion and the papers filed in opposition thereto, and upon the papers filed in support of the appellant's second motion and no papers having been filed in opposition or in relation thereto, it is

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

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

ORDERED that the motion papers filed by the appellant pro se are deemed to constitute a timely notice of 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 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:

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 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 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 appeal is taken.

RIVERA, J.P., DILLON, CHAMBERS and DICKERSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court