Appellate Division: Second Judicial Department

M238471

V/

RANDALL T. ENG, P.J.

JEFFREY A. COHEN

JOSEPH J. MALTESE

ANGELA G. IANNACCI, JJ.

2017-01540 The People, etc., respondent, v Gary L. Smith, appellant. (Ind. No. 1652-15)

DECISION & ORDER ON MOTION

Motion by the appellant pro se to relieve counsel assigned to prosecute an appeal from a judgment of the County Court, Suffolk County, rendered December 22, 2016, and for leave to prosecute the appeal pro se. The appellant's motion for leave to prosecute the appeal as a poor person was granted on April 17, 2017, and the following named attorney was assigned as counsel to prosecute the appeal:

Laurette Mulry, Esq.

Legal Aid Society of Suffolk County - Appeals Bureau

300 Center Drive

PO Box 1697

Riverhead, New York 11901-3398

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

ORDERED that the motion is granted, and counsel assigned to prosecute the appeal is relieved of the assignment and is directed to deliver any transcripts of the proceedings in his possession and all papers on the appeal to the Clerk of this Court, who shall deliver same to the person in charge of the institution wherein the appellant is incarcerated for the appellant's examination and use. The transcript shall be returned to this court when the appellant files his appellate brief; and it is further,

ORDERED that the appellant's time to perfect the appeal is enlarged; the appellant 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 at the time the appellant serves and files his brief he shall file a waiver of his right to appellate counsel in the form set forth below, acknowledged before a notary public:

WAIVER OF RIGHT TO APPELLATE COUNSEL

I understand that I have the right to be represented by an attorney in prosecuting my appeal. If I cannot afford to retain counsel, one will be assigned to represent me at State expense. I understand that if I elect to waive my right to counsel and I am incarcerated at the time my appeal is heard, the Court will not permit me to present oral argument. Knowing these rights I voluntarily elect to waive them and to represent myself on the appeal. I have not been forced to waive my rights and I believe myself to be of sufficient intelligence and ability to properly protect my own interests without the assistance of a lawyer to, among of things, write an appellate brief.

State of

County of

On the day of in the year before me, the undersigned, a Notary Public in and for said State, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same, and that by his signature on the instrument, the individual executed the instrument.

Notary Public

ENG, P.J., COHEN, MALTESE and IANNACCI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

Appellant's Address:

17-A-0056

Elmira Corr. Fac.

P.O. Box 500

Elmira, NY 14901-0500