Opinion
2011-00912 2012-02400 Ind. No. 2109/10 M147807
12-10-2012
The People, etc., respondent, v. Phillip Martinez, appellant.
, J.P.
L. PRISCILLA HALL
SHERI S. ROMAN
JEFFREY A. COHEN, JJ.
DECISION & ORDER ON MOTION
Motion by Richard Barbuto to be relieved as counsel for the appellant on an appeal from a judgment of the County Court, Nassau County, rendered December 13, 2010. Separate motion by the appellant pro se to relieve assigned counsel, for poor person relief in connection with the appeal from an amended judgment of the same court rendered February 14, 2012, and for leave to prosecute the appeals pro se. Application by the appellant to adjourn his motion.
Upon the papers filed in support of the motions and the papers filed in relation thereto, and upon the papers filed in support of the application and no papers having been filed in opposition or in relation thereto, it is
ORDERED that the application is denied; and it is further,
ORDERED that the motion by Richard Barbuto is granted; and it is further,
ORDERED that the motion by the appellant pro se is granted without prejudice to obtaining new counsel, if he be so advised; and it is further,
ORDERED that Richard Barbuto is relieved of the assignment and is directed to deliver any transcripts of the proceedings in his possession and all papers on the appeal to the Clerk of this Court, who shall deliver same to the person in charge of the institution wherein the appellant is incarcerated for the appellant's examination and use; the transcript shall be returned to this Court when the appellant files his appellate brief; and it is further,
ORDERED that the appeal from the amended 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 nine copies of their respective briefs and to serve one copy on each other; 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 the violation of probation 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 the clerk of the trial court shall furnish one certified transcript of each of the proceedings set forth above to the Clerk of this Court, who shall deliver same to the person in charge of the institution wherein the appellant is incarcerated for the appellant's examination and use; the transcript shall be returned to this Court when the appellant files his appellate brief; 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 and furnish one certified transcript of each of the proceedings set forth above to the Clerk of this Court, for delivery to the person in charge of the institution wherein the appellant is incarcerated for the appellant's examination; the transcript shall be returned to this Court when the appellant files his appellate brief; and it is further,
ORDERED that the appellant's time to perfect the appeals is enlarged; the appellant shall prosecute the appeals expeditiously in accordance with this Court's rules (see 22 NYCRR 670.1, et seq.) 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 the appellant 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 the Clerk of this Court is directed to serve a copy of this order upon the clerk of the court from which the appeals are taken; and it is further,
ORDERED that at the time the appellant serves and files his brief he shall file a waiver of his right to appellate counsel in the form set forth below, acknowledged before a notary public:
WAIVER OF RIGHT TO APPELLATE COUNSEL
I, Phillip Martinez, understand that I have the right to be represented by an attorney in prosecuting my appeals. 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 appeals are 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 appeals. 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 to, among of things, write an appellate brief.
Phillip Martinez
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 Phillip Martinez, 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
SKELOS, J.P., HALL, ROMAN and COHEN, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court