Appellate Division: Second Judicial Department

M264771

E/sl

RUTH C. BALKIN, J.P.

SHERI S. ROMAN

JEFFREY A. COHEN

JOSEPH J. MALTESE, JJ.

2018-13121, 2018-13122 The People, etc., respondent, v Todd Moron, appellant. (Ind. No. 82/17)

DECISION & ORDER ON MOTION

Motion by the appellant for leave to prosecute appeals from an order of the Supreme Court, Queens County, dated October 9, 2018, and a judgment of the same court rendered October 9, 2018, following a trial, as a poor person. By order to show cause dated May 28, 2019, the appellant was directed to show cause before this Court why an order should not be made and entered dismissing the appeal from the order on the ground that the order was neither appealable as of right nor by permission, and the appellant's motion was held in abeyance in the interim.

Now, upon the order to show cause and the papers filed in response thereto, and upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the motion to dismiss the appeal from the order dated October 9, 2018, is granted, and that appeal is dismissed (see CPL 450.10, 450.15); and it is further,

ORDERED that the branch of the appellant's motion which is for poor person relief with respect to the judgment rendered October 9, 2018, is granted and the appellant's motion is otherwise denied as academic; and it is further,

ORDERED that the appeal 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 in this action, 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 retained counsel, Mischel & Horn, P.C., One Whitehall Street, 10th Floor, New York, NY 10004, without charge (see CPL 460.70); retained 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 retained 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 retained 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 retained 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 the appellant's time to perfect the appeal is extended; retained 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 retained 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 retained counsel is directed to serve a copy of this decision and order on motion upon the clerk of the court from which the appeal is taken.

BALKIN, J.P., ROMAN, COHEN and MALTESE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court