Appellate Division: Second Judicial Department

M221554

E/afa

REINALDO E. RIVERA, J.P.

LEONARD B. AUSTIN

SHERI S. ROMAN

FRANCESCA E. CONNOLLY, JJ.

2012-04387 The People, etc., respondent, v Edward Brown, appellant. (Ind. No. 7281/00)

DECISION & ORDER ON MOTION

Motion by the appellant pro se, in effect, to restore to active status an appeal from a resentence of the Supreme Court, Kings County, imposed March 22, 2012, which was deemed abandoned pursuant to 22 NYCRR 670.8(f), for leave to prosecute the appeal as a poor person, and for the assignment of counsel. By order to show cause dated January 29, 2016, the appellant was directed to show cause why an order should or should not be made and entered dismissing the appeal on the grounds that the notice of appeal was untimely and the appeal had been abandoned, counsel was assigned to respond to the order to show cause, and the appellant's motion was held in abeyance in the interim. By decisions and orders on motion of this Court dated May 2, 2016, and August 9, 2016, respectively, the appellant's time to respond to the order to show cause was extended until October 14, 2016, and the branch of the appellant's motion which was, in effect, pursuant to CPL 460.30 for an extension of time to take an appeal from the resentence was held in abeyance in the interim.

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

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, in effect, to restore the appeal to active status, for leave to prosecute the appeal 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 branch of the appellant's motion which was, in effect, pursuant to CPL 460.30 for an extension of time to take an appeal from the resentence and the papers filed in relation thereto, it is

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

ORDERED that the branch of the appellant's motion which was, in effect, pursuant to CPL 460.30 for an extension of time to take an appeal from the resentence is granted, and the moving papers are deemed to constitute a timely notice of appeal; and it is further,

ORDERED that the appellant's motion, in effect, to restore the appeal to active status, for leave to prosecute the appeal as a poor person, and for the assignment of counsel is granted; and it is further,

ORDERED that the appeal 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 imposition of resentence 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 resentencing, 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 resentence 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 pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeal:

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 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 assigned counsel or his 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 assigned counsel is directed to serve a copy of this order upon the Clerk of the court from which the appeal is taken.

RIVERA, J.P., AUSTIN, ROMAN and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court