Appellate Division: Second Judicial Department

M258708

E/mm

JOHN M. LEVENTHAL, J.P.

HECTOR D. LASALLE

BETSY BARROS

FRANCESCA E. CONNOLLY, JJ.

2018-09709 The People, etc., respondent, v Reginald McFadden, appellant. (Ind. No. 89766/94)

DECISION & ORDER ON MOTION

Motion by the appellant pro se for leave to prosecute an appeal from an order of the Supreme Court, Nassau County, entered June 29, 2018, as a poor person, and for the assignment of counsel. By order to show cause dated November 20, 2018, the appellant was directed to show cause before this Court why the appeal should not be dismissed on the ground that the order was not appealable as of right and leave to appeal had not been granted.

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 motion and the papers filed in opposition thereto, it is

ORDERED that the motion to dismiss the appeal is denied with respect to so much of the order as denied the branch of the appellant's underlying motion which was pursuant to CPL 440.30(1-a) for DNA testing and the motion to dismiss is otherwise granted (see CPL 450.10, 450.15); and it is further,

ORDERED that the appellant's motion for leave to prosecute the appeal as a poor person and for the assignment of counsel is granted to the extent that poor person relief and the assignment of counsel are granted with respect to the appeal from so much of the order as denied that branch of the appellant's underlying motion which was pursuant to CPL 440.30(1-a) for DNA testing and the appellant's motion is otherwise denied as academic; and it is further,

ORDERED that the appeal from so much of the order as denied that branch of the appellant's underlying motion which was pursuant to CPL 440.30(1-a) for DNA testing 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 any hearing held in connection with the order entered June 29, 2018, if any, except for those minutes previously transcribed and certified (see 22 NYCRR 671.9); 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 pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeal from so much of the order as denied that branch of the appellant's underlying motion which was pursuant to CPL 440.30(1-a) for DNA testing:

Mark Diamond

Box 287356

Yorkville Station, NY 10128

and it is further,

ORDERED that the appellant's time to perfect the appeal from so much of the order as denied that branch of the appellant's underlying motion which was pursuant to CPL 440.30(1-a) for DNA testing is extended; assigned counsel shall prosecute the appeal expeditiously in accordance with this Court's rules (see 22 NYCRR 1250.9) 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 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 order upon the Clerk of the court of the Supreme Court, Nassau County.

LEVENTHAL, J.P., LASALLE, BARROS and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court