Appellate Division: Second Judicial Department

M282345

MB/

MARK C. DILLON, J.P.

COLLEEN D. DUFFY

JOSEPH J. MALTESE

LARA J. GENOVESI, JJ.

2021-09562 People of State of New York, respondent, v Mark Torres, appellant. (Index No. 1590/2018)

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 March 30, 2022, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor:

Appeal from an order of the Supreme Court, Nassau County, dated December 8, 2021. Motion by the appellant, inter alia, for leave to prosecute the appeal as a poor person, for the assignment of counsel, and an extension of time to perfect said appeal.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the motion 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 and the representation by counsel assigned in the Supreme Court, Nassau County, 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 (see 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 (see 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 dated December 8, 2021, 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 any hearing to the appellant's counsel, without charge (see CPLR 1102[b]); assigned counsel is directed to turn over that transcript to the respondent when counsel serves the appellant's brief on the respondent; 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.

DILLON, J.P., DUFFY, MALTESE and GENOVESI, JJ., concur.

ENTER:

Maria T. Fasulo

Clerk of the Court