Appellate Division: Second Judicial Department

M235492

E/ct

CHERYL E. CHAMBERS, J.P.

JEFFREY A. COHEN

BETSY BARROS

VALERIE BRATHWAITE NELSON, JJ.

2015-03579 The People, etc., respondent, v Nathaniel Mabry, appellant. (Ind. No. 2297/13)

DECISION & ORDER ON MOTION

Motion by Lynn W. L. Fahey, counsel assigned to prosecute an appeal from a judgment of the Supreme Court, Queens County, rendered April 14, 2015, in effect, to be relieved on the ground that the appellant has abandoned the appeal by failing to respond to communications by assigned counsel. By order to show cause dated May 4, 2017, the appellant was directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal on the ground that the appellant had abandoned the appeal, and the motion by assigned counsel was held in abeyance in the interim. Separate motion by the appellant pro se, inter alia, to relieve counsel assigned to prosecute the appeal and for the assignment of new counsel.

Now, upon the order to show cause and the papers filed in response thereto, and upon the papers filed in support of the motion 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 is to relieve counsel assigned to prosecute the appeal and for the assignment of new counsel is granted; and it is further,

ORDERED that pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeal:

Seymour James, Jr., Esq.

The Legal Aid Society

199 Water Street - 5th 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 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 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, 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 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 assigned 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; and it is further,

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

ORDERED that the motion by Lynn W. L. Fahey is denied as academic.

CHAMBERS, J.P., COHEN, BARROS and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court