Appellate Division: Second Judicial Department

M241540

SL/

MARK C. DILLON, J.P.

COLLEEN D. DUFFY

FRANCESCA E. CONNOLLY

LINDA CHRISTOPHER, JJ.

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

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

Motion by the appellant pro se for the assignment of counsel on an appeal from a judgment of the County Court, Suffolk County, rendered December 22, 2016. By decision and order on motion of this Court dated April 17, 2017, the appellant was granted leave to prosecute the appeal as a poor person, and counsel was assigned to prosecute the appeal. By decision and order on motion of this Court dated October 11, 2017, assigned counsel was relieved and the appellant was granted leave to prosecute the appeal pro se.

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 it is further,

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

Del Atwell, Esq.

39 5th Street

East Hampton, NY 11937

631-267-2067

and it is further,

ORDERED that the Clerk of the trial court shall furnish one certified transcript of each of the proceedings set forth in the decision 1and order on motion dated October 11, 2017 to the appellant's assigned 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, 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 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 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.

DILLON, J.P., DUFFY, CONNOLLY and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

Appellant's Address:

17-A-0056

Five Points Corr. Fac.

Caller Box 119

Romulus, NY 14541