Opinion
2018-04857 Ind. 1171/2015
10-22-2021
The People, etc., respondent, v. Olean Lester, appellant.
M279722 E/jr
HECTOR D. LASALLE, P.J. WILLIAM F. MASTRO REINALDO E. RIVERA MARK C. DILLON CHERYL E. CHAMBERS, JJ.
DECISION & ORDER ON MOTION
Appeal from a judgment of the Supreme Court, Queens County, rendered April 4, 2018. Retained counsel for the appellant filed a brief on February 27, 2020, the respondent filed a brief on August 3, 2020, and the appellant's retained counsel died in or about January 2021.
Now, on the Court's own motion, it is
ORDERED that in compliance with the requirements of CPL 321(c) and People v Garcia (93 N.Y.2d 42):
THE APPELLANT IS HEREBY ADVISED
A. that he has the right to the assistance of counsel in connection with his appeal;
B. that if he is financially unable to retain counsel he may make an application to this Court for the assignment of counsel, and, upon proof of such financial inability, one will be appointed for him;
C. that he has the right to forego the assistance of counsel and to prosecute his appeal pro se; and
D. that within 60 days from the date of this decision and order on motion the appellant is directed to either (1) move for the appointment of counsel to represent him, (2) file the attached waiver indicating his intent to prosecute the appeal pro se, or (3) retain counsel to represent him, who shall file a notice of appearance; and, ON THE COURT'S OWN MOTION, it is:
ORDERED that the People are directed to serve a copy of this decision and order on motion, upon the appellant, by personal delivery of the same to him; and it is further, ORDERED that the People shall file proof of such service with the Clerk of this Court within 20 days of the date hereof; and it is further, ORDERED that if personal service of a copy of this decision and order on motion cannot be made with due diligence, the People may make ex parte application to this court for an order authorizing alternative methods of service. Such an application shall be supported by affidavit or affidavits detailing the steps taken to find and serve the appellant personally; and it is further, ORDERED that the appellant shall be deemed to have abandoned the appeal and this Court will issue an order directing the appellant to show cause why the appeal should or should not be dismissed on the ground that the appeal has been abandoned unless within 60 days from the date of this decision and order on motion the appellant either (1) moves for the appointment of counsel to represent him, (2) files the attached waiver indicating his intent to prosecute the appeal pro se, or (3) retains counsel to represent him, who shall file a notice of appearance; and it is further, ORDERED that in the event that the appellant decides to prosecute the appeal pro se, the appellant shall file a waiver of the right to appellate counsel, in the form set forth below, acknowledged before a notary public:
WAIVER OF RIGHT TO APPELLATE COUNSEL
I, Olean Lester, understand that I have the right to be represented by an attorney in prosecuting my appeal. If I cannot afford to retain counsel, one will be assigned to represent me at State expense. I understand that if I elect to waive my right to counsel and I am incarcerated at the time my appeal is heard, the Court will not permit me to present oral argument. Knowing these rights I voluntarily elect to waive them and to represent myself on the appeal. I have not been forced to waive my rights and I believe myself to be of sufficient intelligence and ability to properly protect my own interests without the assistance of a lawyer.
___ Olean Lester
State of
County of
On the ___ day of ___ in the year ___ before me, the undersigned, a Notary Public in and for said State, personally appeared Olean Lester, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same, and that by his signature on the instrument, the individual executed the instrument.
___ Notary Public
LASALLE, P.J., MASTRO, RIVERA, DILLON and CHAMBERS, JJ., concur.