Appellate Division: Second Judicial Department

M217411

E/sl

WILLIAM F. MASTRO, J.P.

JOHN M. LEVENTHAL

JOSEPH J. MALTESE

FRANCESCA E. CONNOLLY, JJ.

2013-10388 The People, etc., respondent, v Mark J. Mendoza, appellant. (Dutchess County Ind. No. 91/13)

DECISION & ORDER ON MOTION

2016-07512

The People, etc., respondent,

v Mark J. Mendoza, appellant.

(Westchester County S.C.I. No. 13-1156)

2016-07514

The People, etc., respondent,

v Mark J. Mendoza, appellant.

(Putnam County S.C.I. No. 251/13)

Motion by the appellant, in effect, to recalendar an appeal from a judgment of the County Court, Dutchess County, rendered October 9, 2013, under Dutchess County Indictment No. 91/13, to consolidate that appeal with appeals from a judgment of the County Court, Westchester County, rendered December 19, 2013, under Westchester County Superior Court Information No. 13-1156, and a judgment of the County Court, Putnam County, rendered October 29, 2013, under Putnam County Superior Court Information No. 251/13, and for poor person relief and the assignment of counsel with respect to the appeals from the judgments rendered December 19, 2013, and October 29, 2013.

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

ORDERED that the branches of the motion which are, in effect, to recalendar the appeal from the judgment rendered under Dutchess County Indictment No. 91/13, and to consolidate the appeals are denied; and it is further,

ORDERED that on the Court's own motion, the appeals from the judgments rendered under Westchester County Superior Court Information No. 13-1156 and Putnam County Superior Court Information No. 251/13 will be calendared together and will argued or submitted on the same date; each appeal will be briefed separately and the parties will submit separate briefs for each appeal; and it is further,

ORDERED that the branches of the motion which are for poor person relief and the assignment of counsel with respect to the appeals from the judgments rendered under Westchester County Superior Court Information No. 13-1156 and Putnam County Superior Court Information No. 251/13 are granted; and it is further,

ORDERED that the appeals from the judgments rendered under Westchester County Superior Court Information No. 13-1156 and Putnam County Superior Court Information No. 251/13, will be heard on the original papers (including a certified transcript of the proceedings, if any) and on the appellant's briefs and the respondent's briefs (one as to each appeal); 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 stenographers of the trial courts are directed promptly to make, certify, and file two transcripts of the proceedings of any pretrial hearings, of the plea(s) of guilty or of the trial(s), and of the imposition of sentences in the actions under Westchester County Superior Court Information No. 13-1156 and Putnam County Superior Court Information No. 251/13, except for those minutes previously transcribed and certified (see 22 NYCRR 671.9); and it is further,

ORDERED that in the event that either case under Westchester County Superior Court Information No. 13-1156 or Putnam County Superior Court Information No. 251/13 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 clerks of the trial courts 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 respondents when counsel serves the appellant's briefs on the respondents; and it is further,

ORDERED that in the event the stenographers have already prepared copies of any of the minutes for a codefendant, then the clerks of the trial courts are directed to reproduce copies 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 copies of the presentence reports prepared in connection with the appellant's sentencing under Westchester County Superior Court Information No. 13-1156 and Putnam County Superior Court Information No. 251/13, including the recommendation sheets and any prior reports on the appellant which are incorporated in or referred to in the reports, 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 sentences are raised on the appeals from the judgment under Westchester County Superior Court Information No. 13-1156 or the judgment under Putnam County Superior Court Information No. 251/13, or if assigned counsel cites or relies upon the probation reports in a brief or motion in any other way, counsel shall provide a complete copy of such reports 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 from the judgments under Westchester County Superior Court Information No. 13-1156 or Putnam County Superior Court Information No. 251/13:

Thomas T. Keating, Esq.

39A Cedar Street

Dobbs Ferry, NY 10522

and it is further,

ORDERED that the appellant's time to perfect the appeals from the judgments under Westchester County Superior Court Information No. 13-1156 and Putnam County Superior Court Information No. 251/13 is enlarged; assigned counsel shall prosecute those 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 files have been sealed, they are 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 appeals from the judgments under Westchester County Superior Court Information No. 13-1156 and Putnam County Superior Court Information No. 251/13; 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 copies of this decision and order on motion upon the clerk of the County Court, Westchester County, and the clerk of the of the County Court, Putnam County.

MASTRO, J.P., LEVENTHAL, MALTESE and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court