Appellate Division: Second Judicial Department

M256739

E/mm

ALAN D. SCHEINKMAN, P.J.

JOHN M. LEVENTHAL

JOSEPH J. MALTESE

VALERIE BRATHWAITE NELSON, JJ.

2018-07000, 2018-07001, 2018-12477, 2018-12478 The People, etc., respondent, v Calvin Nicholson, appellant. (Ind. Nos. 671/16, 2424/15)

DECISION & ORDER ON MOTION

Motion by the appellant pro se for leave to prosecute appeals from a judgment of the Supreme Court, Queens County, rendered March 12, 2018, under Indictment No. 2424/15, and a judgment of conviction purportedly rendered December 20, 2017, under Indictment No. 671/16, as a poor person, and for the assignment of counsel. By order to show cause dated August 15, 2018, the appellant was directed to show cause before this Court why the appeals should not be dismissed on the ground that the notice of appeal from the judgment under Indictment No. 671/16 was untimely (see CPL 460.30) and/or that no judgment of conviction was rendered on December 20, 2017, under Indictment No. 671/16, counsel was assigned to respond to the order to show cause and/or to make a motion with respect to the judgment under Indictment No. 671/16, and the appellant's motion was held in abeyance in the interim. Motion by the appellant pursuant to CPL 460.30 for an extension of time to take appeals from the judgment rendered March 12, 2018, under Indictment No. 671/16 and resentences of the same court imposed April 24, 2018, under Indictment Nos. 2424/15 and 671/16, and for poor person relief and the assignment of counsel with respect to those appeals, and to consolidate those appeals with the appeal from the judgment rendered March 12, 2018, under Indictment No. 2424/15.

Now, upon the order to show cause and the papers filed in response thereto, and upon the papers filed in support of the appellant's motions and the papers filed in relation thereto, it is

ORDERED that the appellant's motions are granted and the appeal under Appellate Division Docket No. 2018-07001 is deemed to be from the judgment rendered March 12, 2018, under Indictment No. 671/16; and it is further,

ORDERED that the appeals 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 an original and five duplicate hard copies, and, if represented by counsel, one digital copy, of their respective briefs, and to serve one hard copy on each other (22 NYCRR 1250.9[a][4],[c][1],[d],[e]); additionally, the appellant is directed to file proof of service of a subpoena upon the clerk of the court of original instance requiring all documents constituting the record on appeal to be filed with the Clerk of this Court (22 NYCRR 1250.9[a][4][i]); 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 of any pretrial hearings, of the plea of guilty or of the trial, and of the imposition of sentence and resentence in the above-entitled actions, except for those minutes previously transcribed and certified (see 22 NYCRR 671.9); and it is further,

ORDERED that in the event that the case was tried to a conclusion before a jury, the stenographer shall also make, certify, and file two transcripts of the minutes of proceedings during jury selection; and it is further,

ORDERED that 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 sentence is raised on the appeals, 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 appeals:

Paul Skip Laisure

Appellate Advocates

111 John Street - 9th Floor

New York, New York 10038

and it is further,

ORDERED that the appellant's time to perfect the appeals is enlarged; assigned counsel shall prosecute those appeal expeditiously in accordance with this Court's rules 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 appeals; 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; and it is further,

ORDERED that the motion to dismiss the appeals is denied.

SCHEINKMAN, P.J., LEVENTHAL, MALTESE and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court