Appellate Division: Second Judicial Department

M216493

E/mv

REINALDO E. RIVERA, J.P.

THOMAS A. DICKERSON

ROBERT J. MILLER

FRANCESCA E. CONNOLLY, JJ.

2015-03885, 2016-03277 The People, etc., respondent, v Clarence A. Robinson, appellant. (Ind. No. 15-00024)

DECISION & ORDER ON MOTION Motion for Poor Person Relief and to Assign Counsel

Motion by the appellant pro se for leave to prosecute appeals from a judgment and an amended judgment of the County Court, Orange County, rendered April 22, 2015, and October 14, 2015, respectively, as a poor person, and for the assignment of counsel. By order to show cause dated May 27, 2016, the appellant was directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal from the amended judgment on the ground that the notice of appeal from the amended judgment was untimely, counsel was assigned to respond to the order to show cause, and the appellant's motion was held in abeyance in the interim. Motion by the appellant pursuant to CPL 460.30 for an extension of time to take an appeal from the amended judgment.

Now, upon the order to show cause and the papers filed in response thereto, upon the papers filed in support of the appellant's motion for leave to prosecute the appeals as a poor person and for the assignment of counsel and the papers filed in opposition thereto, and upon the papers filed in support of the appellant's motion for pursuant to CPL 460.30 for an extension of time to take an appeal from the amended judgment and the papers filed in relation thereto, it is

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

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

ORDERED that the appellant's moving papers are deemed to constitute a timely notice of appeal from the amended judgment; and it is further,

ORDERED that on the Court's own motion, the appeals are consolidated; 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 of any pretrial hearings, of the plea of guilty or of the trial, and of the imposition of sentence in connection with the judgment in this action, and of any hearing in connection with the violation of probation, and of the imposition of sentence in connection with the amended judgment 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 order and 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 sentencing, including the recommendation sheet and any prior reports on the defendant which are incorporated 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 the appeals, 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 appeals:

Richard L. Herzfeld, Esq.

112 Madison Avenue, 8th Floor

New York, NY 10016

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 order upon the Clerk of the court from which the appeals are taken.

RIVERA, J.P., DICKERSON, MILLER and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

Appellant's Address:

15-A-4285

Gowanda Corr. Fac.

P.O. Box 350

Gowanda, NY 14070