Appellate Division: Second Judicial Department

M219236

V/

RANDALL T. ENG, P.J.

RUTH C. BALKIN

L. PRISCILLA HALL

BETSY BARROS, JJ.

2015-01290, 2016-06836 The People, etc., respondent, v Leroy Peoples, appellant. (Ind. No. 2103/03)

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

Motion by the appellant for poor person relief and the assignment of counsel with respect to an appeal from a resentence of the Supreme Court, Queens County, imposed May 12, 2016, and to consolidate that appeal with a resentence of the same court imposed January 28, 2015. Separate motion by the respondent to dismiss the appeal from the resentence imposed May 12, 2016, on the ground that the proceedings which occurred on May 12, 2016, did not constitute a resentence.

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

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

ORDERED that the respondent's motion is held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof; and it is further,

ORDERED that 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 ten 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 imposition of resentence in this action on May 12, 2016, 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 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 resentencing on May 12, 2016, 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 resentence on May 12, 2016, 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 appeal from the resentence imposed May 12, 2016:

Lynn W. L. Fahey, Esq.

Appellate Advocates

111 John Street - 9th Floor

New York, New York 10038

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 or her 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 decision and order on motion upon the clerk of the court from which the appeals are taken.

ENG, P.J., BALKIN, HALL and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Appellant's Address: Clerk of the Court

05-A-2620

Woodbourne Corr. Fac.

99 Prison Road, P.O. Box 1000

Woodbourne, NY 12788-1000