Appellate Division: Second Judicial Department

M225935

U/sl

REINALDO E. RIVERA, J.P.

MARK C. DILLON

CHERYL E. CHAMBERS

SYLVIA O. HINDS-RADIX, JJ.

2016-11950, 2016-11951 The People, etc., respondent, v Jeremiah Davis, appellant. (Ind. Nos. 783/12, 7338/13)

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

On the Court's own motion, it is

ORDERED that the decision and order on motion dated January 18, 2017, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor:

Motion by Jeremiah Davis pursuant to CPL 460.30 for an extension of time to take appeals from two judgments of the Supreme Court, Kings County, rendered April 18, 2013, and April 13, 2016, respectively, for leave to prosecute the appeals as a poor person, and for the assignment of counsel.

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

ORDERED that the branch of the motion which is to extend the time to take an appeal from the judgment rendered April 18, 2013, is denied (see CPL 460.30[1]); and it is further,

ORDERED that the branch of the motion which is to extend the time to take an appeal from the judgment rendered April 13, 2016, is granted, and the moving papers are deemed to constitute a timely notice of appeal from that judgment; and it is further,

ORDERED that the branches of the motion which are for poor person relief and the assignment of counsel are denied as academic with respect to the appeal from the judgment rendered April 18, 2013, and granted with respect to the appeal from the judgment rendered April 13, 2016; and it is further,

ORDERED that the appeal from the judgment rendered April 13, 2016, 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 the action under Ind. No. 7338/13, except for those minutes previously transcribed and certified (see 22 NYCRR 671.9); and it is further,

ORDERED that in the event that the case under Ind. No. 7338/13 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 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 sentencing under Ind. No. 7338/13, 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 the appeal from the judgment rendered April 13, 2016, 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 judgment rendered April 13, 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 appeal from the judgment rendered April 13, 2016, 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 or her representative access to the record for the purpose of preparing the appeal from the judgment rendered April 13, 2016; 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 Supreme Court, Kings County.

RIVERA, J.P., DILLON, CHAMBERS and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

Appellant's Address:

12-A-4143

Coxsackie Corr. Fac.

11260 Route 9W

P.O. Box 999

Coxsackie, New York 12051-0999