Appellate Division: Second Judicial Department

M264882

E/sl

CHERYL E. CHAMBERS, J.P.

COLLEEN D. DUFFY

HECTOR D. LASALLE

ANGELA G. IANNACCI, JJ.

2017-12763, 2018-12087 The People, etc., respondent, v Levar Burton, appellant. (Ind. No. 513N/17)

ORDER TO SHOW CAUSE Motion for Poor Person Relief and to Assign Counsel

Motion by the appellant pro se for leave to prosecute appeals from an order of the Supreme Court, Nassau County, dated October 20, 2017, and a judgment of the same court rendered August 21, 2018, as a poor person, and for the assignment of counsel.

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 not be made and entered dismissing the appeal from the order on the ground that the order dated October 20, 2017, is neither appealable as of right nor by permission (see CPL 450.10, 450.15), by filing an affirmation or an affidavit on that issue in the office of the Clerk of this Court on or before August 30, 2019; and it is further,

ORDERED that the appellant's motion is granted to the extent that poor person relief and the assignment of counsel are granted with respect to the appeal from the judgment, and the appellant's motion is otherwise held in abeyance in the interim; and it is further,

ORDERED that the appeal from the judgment 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 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 and to respond to the order to show cause:

Beverly Van Ness

233 Broadway, Suite 2704

New York, New York 10279

and it is further,

ORDERED that the appellant's time to perfect the appeal from the judgment is extended; assigned counsel shall prosecute the appeal from the judgment expeditiously in accordance with this Court's rules (see 22 NYCRR 1250.5[a]) 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 court of the Supreme Court, Nassau County; 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).

CHAMBERS, J.P., DUFFY, LASALLE and IANNACCI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

Appellant's Address:

435 Albany Avenue

Amityville, NY 11701