Appellate Division: Second Judicial Department

M209714

E/sl

LEONARD B. AUSTIN, J.P.

JEFFREY A. COHEN

ROBERT J. MILLER

COLLEEN D. DUFFY, JJ.

2015-06636 The People, etc., respondent, v Daniel Miller, appellant. (Ind. No. 1038/12)

DECISION & ORDER ON MOTION

Motion by the appellant pro se on an appeal from a judgment of the Supreme Court, Nassau County, rendered June 16, 2015, inter alia, in effect, for leave to prosecute the appeal pro se, for poor person relief, to be furnished with a copy of the probation report with redactions or deletions pursuant to CPL 390.50, and to enlarge the time to perfect the appeal.

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

ORDERED that the branches of the motion which are, in effect, for leave to prosecute the appeal pro se, for poor person relief, to be furnished with a copy of the probation report with redactions or deletions pursuant to CPL 390.50, and to enlarge the time to perfect the appeal are granted, and the motion is otherwise denied; 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, if any, 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 file one certified transcript of each of the proceedings set forth with the the Clerk of this Court, without charge (see CPL 460.70); the Clerk of this Court shall deliver the transcript to the person in charge of the institution wherein the appellant is incarcerated for examination by the appellant; the transcript shall be returned to this Court when the appellant files a brief; the Clerk of the Court shall provide a copy of the transcript to the respondent after the appellant's brief has been filed; and it is further,

ORDERED that the appellant's time to perfect the appeal is enlarged; the appellant 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, upon service of a copy of this decision and order on motion upon it, the Department of Probation is hereby authorized and directed to submit to the Clerk of the Court 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; the Clerk of the Court, or her designee, shall make appropriate redactions or deletions pursuant to CPL 390.50 and shall deliver the redacted presentence report to the person in charge of the institution wherein the appellant is incarcerated for examination by the appellant; 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 the appellant cites or relies upon the probation report in a brief or motion in any other way, the appellant shall provide a complete copy of such redacted 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 Clerk of the Court shall serve a copy of this order upon the clerk of the court from which the appeal is taken; and it is further,

ORDERED that at the time the appellant serves and files his brief he shall file a waiver of his right to appellate counsel in the form set forth below, acknowledged before a notary public:

WAIVER OF RIGHT TO APPELLATE COUNSEL

I, Daniel Miller, understand that I have the right to be represented by an attorney in prosecuting my appeal. If I cannot afford to retain counsel, one will be assigned to represent me at State expense. I understand that if I elect to waive my right to counsel and I am incarcerated at the time my appeal is heard, the Court will not permit me to present oral argument. Knowing these rights I voluntarily elect to waive them and to represent myself on the appeal. I have not been forced to waive my rights and I believe myself to be of sufficient intelligence and ability to properly protect my own interests without the assistance of a lawyer to, among of things, write an appellate brief.

Daniel Miller

State of

County of

On the day of in the year before me, the undersigned, a Notary Public in and for said State, personally appeared Daniel Miller, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same, and that by his signature on the instrument, the individual executed the instrument.

AUSTIN, J.P., COHEN, MILLER and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court