Appellate Division: Second Judicial Department

M274128

AFA/

REINALDO E. RIVERA, J.P.

SYLVIA O. HINDS-RADIX

COLLEEN D. DUFFY

VALERIE BRATHWAITE NELSON, JJ.

2020-07550 People of State of New York, respondent, v Danny Davila, appellant.

DECISION & ORDER ON MOTION

Appeal from an order of the Supreme Court, Westchester County, dated August 20, 2020. Motion by assigned counsel to be relieved of the assignment to prosecute the appeal and for the assignment of new counsel.

Upon the papers filed in support of the motion and no papers having been filed in opposition or in relation thereto, it is

ORDERED that the motion is granted, and the former assigned counsel is directed to turn over all papers in the action to new counsel herein assigned; and it is further,

ORDERED that the branch of the motion which is for leave to prosecute the appeal as a poor person is denied as unnecessary, as the appellant was granted leave to proceed as a poor person in the Supreme Court and, pursuant to Correction Law 168-n (3), his status as a poor person continues on appeal; 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 hearing held in connection with the order dated August 20, 2020, 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 to the appellant's counsel, without charge (see CPLR 1102[b]); 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 the branch of the motion which is to assign counsel is granted and pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeal:

Bruce R. Bekritsky

1551 Kellum Place

Mineola, NY 11501

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 or considered by the trial court in connection with the appellant's risk level determination, including the recommendation sheet and any prior reports on the appellant which are incorporated or referred to in the report, and to provide additional copies to this Court upon demand; and it is further,

ORDERED that the appellant's time to perfect the appeal 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 the filing fee is waived (see CPLR 1102[d]); 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 appeal is taken.

RIVERA, J.P., HINDS-RADIX, DUFFY and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court