Appellate Division: Second Judicial Department

M253674

E/sl

RUTH C. BALKIN, J.P.

JEFFREY A. COHEN

ANGELA G. IANNACCI

LINDA CHRISTOPHER, JJ.

2018-02109 The People, etc., respondent, v Robert Cruz, appellant. (Ind. No. 636/17)

ORDER TO SHOW CAUSE

2018-09011

The People, etc., respondent,

v Robert Cruz, appellant.

(Ind. No. 636/17)

Motion by the appellant pro se on appeals from two judgments of the Supreme Court, Queens County, rendered December 19, 2017, and February 1, 2018, respectively, in effect, for leave to prosecute the appeal from the judgment rendered February 1, 2018, as a poor person, and for the assignment of counsel. By decision and order on motion of this Court dated April 11, 2018, the appellant was granted poor person relief with respect to the judgment rendered December 19, 2017, and the following named attorney was assigned as counsel to prosecute the appeal:

The Legal Aid Society

199 Water Street

New York, New York 10038

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

ORDERED that on the Court's own motion, the appellant is directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal from the judgment rendered December 19, 2017, on the ground that the appeal has been rendered academic because the plea and sentence were vacated, by filing an affirmation or an affidavit on that issue in the office of the Clerk of this Court on or before September 6, 2018; and it is further,

ORDERED that the Clerk of this Court or her designee is directed to serve a copy of this order to show cause upon the appellant at his last known place of residence or, if he is imprisoned, at the institution in which he is confined, and upon the attorney who last appeared for him, and upon the District Attorney, by ordinary mail pursuant to CPL 470.60(2); and it is further,

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

ORDERED that the appeal from the judgment rendered February 1, 2018, 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 held in connection with the judgment rendered February 1, 2018, except for those minutes previously transcribed and certified (see 22 NYCRR 671.9); the Clerk of the trial court shall furnish one certified transcript of each of the proceedings set forth above to the appellant's 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 pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeal from the judgment rendered February 1, 2018:

The Legal Aid Society

199 Water Street

New York, New York 10038

and it is further,

ORDERED that the appellant's time to perfect the appeal from the judgment rendered February 1, 2018, 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 Supreme Court, Queens County.

BALKIN, J.P., COHEN, IANNACCI and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court