Appellate Division: Second Judicial Department

M227877

U/ct

JOHN M. LEVENTHAL, J.P.

JEFFREY A. COHEN

ROBERT J. MILLER

FRANCESCA E. CONNOLLY, JJ.

2015-03898, 2015-03901 The People, etc., respondent, v Ruark Melendez, appellant. (Ind. Nos. 293/14, 3166/12)

DECISION & ORDER ON MOTION

On the Court's own motion, it is

ORDERED that the decisions and orders on motion of this Court dated November 28, 2016, and January 9, 2017, in the above-entitled case are recalled and vacated, and the following decision and order is substituted for the decision and order on motion dated November 28, 2016:

Motion by the appellant for leave to prosecute appeals from two judgments of the Supreme Court, Queens County, both rendered April 30, 2015, as a poor person, and to enlarge the time to perfect the appeals.

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

ORDERED that the motion is granted; 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 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 each action, 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 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 retained counsel, Deron Castro, P.C., 118-35 Queens Blvd., Suite 1220, Forest Hills, NY 11375, without charge (see CPL 460.70); retained 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 retained 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 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 the appeals, 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 appeals is enlarged; retained 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 retained 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 retained 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.

LEVENTHAL, J.P., COHEN, MILLER and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court