Appellate Division: Second Judicial Department

M216290

E/ct

JOHN M. LEVENTHAL, J.P.

SYLVIA O. HINDS-RADIX

JOSEPH J. MALTESE

COLLEEN D. DUFFY, JJ.

2011-09651 The People, etc., respondent, v Richard Greene, appellant. (Ind. No. 2203/09)

DECISION & ORDER ON MOTION

Appeal by Richard Greene from a judgment of the Supreme Court, Queens County, rendered September 15, 2010, convicting him of burglary in the second degree pursuant to Penal Law § 140.25. By decision and order on motion of this Court dated March 6, 2012, the appellant's motion, inter alia, for leave to prosecute the appeal as a poor person and for the assignment of counsel was granted, and Lynn W. L. Fahey, Esq., Appellate Advocates, 2 Rector Street - 10th Floor, New York, New York 10006, was assigned to prosecute the appeal. By decision and order on motion of this Court dated April 9, 2013, the appellant's motion to relieve assigned counsel and for leave to proceed pro se was granted. The appellant proffered a brief to the Court for filing on February 19, 2016. The content of the proffered brief does not appear to relate or have relevance to the judgment appealed from. By order to show cause dated March 9, 2016, the parties were directed to show cause before this Court why an order should or should not be made and entered vacating the decision and order on motion of this Court dated April 9, 2013, on the ground that the appellant lacks the mental capacity to waive counsel and proceed pro se, and Seymour W. James, Jr., Esq., The Legal Aid Society, 199 Water Street - 5th Floor, New York, New York 10038, was assigned to assist the appellant in responding to the order to show cause.

Now, upon the order to show cause and the papers filed in response thereto, it is

ORDERED that the motion is granted to the extent that so much of the decision and order on motion of this Court dated April 9, 2013, as granted the appellant leave to proceed pro se is recalled and vacated (see People v Stone, 22 NY3d 520, 527), and the branch of the appellant's motion which is for leave to proceed pro se is denied, without prejudice to seeking to file a pro se supplemental brief after assigned counsel files a brief; and it is further,

ORDERED and the appellant's status as a poor person is continued, and the following attorney is assigned counsel for the appellant:

Seymour W. James, Jr., Esq.

The Legal Aid Society

199 Water Street - 5th Floor

New York, New York 10038

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 to provide additional copies to this Court upon demand; 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 the Court and the District Attorney's office 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; 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 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.

LEVENTHAL, J.P., HINDS-RADIX, MALTESE and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court