Appellate Division: Second Judicial Department

M298035

AFA/

VALERIE BRATHWAITE NELSON, J.P.

PAUL WOOTEN

LOURDES M. VENTURA

LAURENCE L. LOVE, JJ.

2023-09348, 2024-06474 The People, etc., respondent, v Johanny Rodriguez, appellant. (S.C.I. No. 72324/2023, SCR 72326/2023)

DECISION & ORDER ON MOTION

Appeal from a judgment of the Supreme Court, Queens County, rendered July 20, 2023 under S.C.I. No. 72324/2023. Motion by the appellant, in effect, for an extension of time to file a late notice of appeal from a judgment of the same court, rendered June 30, 2023, under SCR 72326/2023 and for poor person relief and the assignment of counsel with respect to that appeal. By decision and order on motion of this Court dated January 17, 2024, the appellant was granted poor person relief with respect to the judgment under S.C.I. No. 72324/2023 and the following named attorney was assigned as counsel to prosecute that appeal:

Twyla Carter

The Legal Aid Society

199 Water Street - 5th Floor

New York, NY 10038

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

ORDERED that the motion is granted, the moving papers are deemed to constitute a timely notice of appeal from the judgment of the Supreme Court, Queens County, rendered June 30, 2023, under SCR 72326/2023, pursuant to County Law § 722, counsel assigned to prosecute the appeal under S.C.I. No. 72324/2023 is also assigned as counsel to prosecute the appeal under SCR 72326/2023; and it is further,

ORDERED that on the Court's own motion, the appeals are consolidated; and it is further,

ORDERED that the appeals 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 upload, through the digital portal on this Court's website, digital copies of their respective briefs, with proof of service of one hard copy on each other (see 22 NYCRR 670.9[a]); 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 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 pleas of guilty or of the trial, and of the imposition of sentences in the actions under SCR 72326/2023, 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 the appellant's time to perfect the appeals is extended; assigned counsel shall prosecute the appeals 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 or her representative access to the record for the purpose of preparing the appeals; 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 from which the appeals are taken.

BRATHWAITE NELSON, J.P., WOOTEN, VENTURA and LOVE, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court