Appellate Division: Second Judicial Department

M258153

E/sl

MARK C. DILLON, J.P.

JOHN M. LEVENTHAL

HECTOR D. LASALLE

VALERIE BRATHWAITE NELSON, JJ.

2017-08067, 2018-14455 The People, etc., respondent, v Joseph Dixon, appellant. (Ind. Nos. 9104/15, 6471/16)

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

On the Court's own motion, it is

ORDERED that the decision and order on motion of this Court dated December 4, 2017, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor:

Renewed motion by the appellant pro se for leave to prosecute an appeal from a judgment of the Supreme Court, Kings County, rendered April 19, 2017, under Indictment No. 9104/15, as a poor person, and for the assignment of counsel. By order to show cause dated October 17, 2017, the appellant was directed to show cause before this Court why that appeal should not be dismissed on the ground that the notice of appeal from the judgment was untimely, counsel was assigned to respond to the order to show cause, 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 the appeal from the judgment rendered April 19, 2017, under Indictment No. 9104/15, as well as a judgment of the same court also rendered April 19, 2017, under Indictment No. 6471/16, and for poor person relief and the assignment of counsel.

Now, upon the order to show cause and the papers filed in response thereto, and upon the papers filed in support of the motions and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the motion to dismiss the appeal from the judgment rendered under Indictment No. 9104/15 is denied; and it is further,

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

ORDERED that the appellant's moving papers are deemed to constitute a timely notice of appeals; 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 the appeals 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 sentences in these 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 defendant's sentencing, including the recommendation sheet and any prior reports on the defendant 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 sentences 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, nunc pro tunc to December 4, 2017:

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 extended; assigned counsel shall prosecute the appeals 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 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 court from which the appeals are taken.

DILLON, J.P., LEVENTHAL, LASALLE and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court