Appellate Division: Second Judicial Department

M220452

E/sl

MARK C. DILLON, J.P.

THOMAS A. DICKERSON

SYLVIA O. HINDS-RADIX

JOSEPH J. MALTESE, JJ.

2016-06088 The People, etc., respondent, v Mark A. Small, appellant. (Ind. No. 1120N/14)

DECISION & ORDER ON MOTION

Motion by the appellant to relieve counsel assigned to prosecute an appeal from a judgment of the Supreme Court, Nassau County, rendered May 20, 2016, and to substitute retained counsel. By decision and order on motion of this Court dated August 23, 2016, the appellant was granted poor person relief, and the following named attorney was assigned as counsel to prosecute the appeal:

Mark Diamond, Esq.

Box 287356

Yorkville Station

New York, New York 10128

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

ORDERED that the motion is granted, and the following named attorney is substituted as retained counsel:

Randall D. Unger, Esq.

42-40 Bell Boulevard, Suite 302

Bayside, NY 11361

and it is further,

ORDERED that on the Court's own motion, so much of the decision and order on motion dated August 23, 2016, as granted poor person relief to the appellant is vacated, and former assigned counsel is directed to turn over all papers in the above-entitled action to the Clerk of the Court; 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 retained 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 retained 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 in the event the file has been sealed, it is hereby unsealed for the limited purpose of allowing retained 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 retained 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.

DILLON, J.P., DICKERSON, HINDS-RADIX and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court