of the State of New York for the 9th & 10th judicial Districts

ANTHONY MARANO, P.J.

BRUCE E. TOLBERT

JERRY GARGUILO, JJ.

DECISION & ORDER ON MOTION

Motion by appellant for leave to prosecute an appeal from a judgment of conviction of the Justice Court of the Town of Amenia, Dutchess County, rendered May 15, 2017, as a poor person, and for the assignment of counsel. By order to show cause dated July 19, 2017, appellant was directed either (1) to show cause before this court why the appeal should not be dismissed on the ground that the appeal was not properly taken in that no affidavit of errors was filed, and no application pursuant to CPL 460.30 for an extension of time to file an affidavit of errors had been made, by filing an affidavit or affirmation on that issue with the Clerk of this court on or before August 8, 2017, or (2), if so advised, to make a motion in this court pursuant to CPL 460.30 for an extension of time to file an affidavit of errors, and appellant's motion was held in abeyance in the interim. By decision and order on motion dated September 7, 2017, appellant's time to respond to the order to show cause was extended to September 25, 2017. Separate motion by appellant to continue the stay of execution of the judgment, which was granted by the Supreme Court, Dutchess County on May 26, 2017, pending the determination of the appeal to this court, and to enlarge the time to perfect the appeal.

Upon the order to show cause and the papers filed by appellant in response thereto, and upon the papers filed in support of appellant's motions and no papers having been filed in opposition thereto, it is

ORDERED, on the court's own motion, that appellant's motions and the order to show cause are consolidated for purposes of disposition; and it is further,

ORDERED that the motion to dismiss the appeal is denied; and it is further,

ORDERED that the branch of appellant's motion seeking to continue the stay is granted and the stay of execution of the judgment is extended pending the determination of the appeal on condition that the appeal be perfected by February 2, 2018; and it is further,

ORDERED that in the event that the above condition is not met, the court, on its own motion, may vacate the stay, or respondent may move to vacate the stay on three days' notice; and it is further,

ORDERED that the branch of appellant's motion seeking an enlargement of time to perfect the appeal is granted and the appeal shall be perfected by February 2, 2018; and it is further,

ORDERED that the branches of appellant's motion seeking leave to prosecute the appeal as a poor person and the assignment of counsel are granted and the Dutchess County Public Defender is assigned as counsel; and it is further,

ORDERED that the court stenographer, if any, shall promptly make, certify and file two typewritten transcripts of the minutes of all proceedings, if any, with the clerk of the trial court, who is directed to furnish without charge one copy to the attorney who is now assigned as counsel to prosecute the appeal and to file the second copy of the transcript, if any, with the record, which shall then be filed with this court; and it is further,

ORDERED that assigned counsel shall serve a copy of the transcript, if any, upon the District Attorney, same to be returned upon argument or submission of the appeal; 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, if any, prepared in connection with appellant's sentencing, including the recommendation sheet and any prior reports on appellant which are incorporated or referred to in the report.

ENTER:

Paul Kenny

Chief Clerk