Opinion
2021-72371 Motion 2021-01809
09-29-2021
The People, etc., respondent, v. James Truell, appellant. Ind. No. 2320/2016
Unpublished Opinion
MOTION DECISION
HECTOR D. LASALLE, P.J. REINALDO E. RIVERA COLLEEN D. DUFFY WILLIAM G. FORD, JJ.
DECISION & ORDER ON MOTION
On the Court's own motion, it is
ORDERED that the decision and order on motion of this Court dated September 24, 2021, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor:
Appeal from a resentence of the Supreme Court, Queens County, imposed February 5, 2021. Motion by the appellant to be provided with the transcripts of all proceedings in the above-entitled action, including all pretrial proceedings, and to be provided with the reports prepared pursuant to CPL 730.
Upon the papers filed in support of the motion and the papers filed in relation thereto, it is
ORDERED that the branch of the motion which is to be provided with the transcripts of all proceedings in the above-entitled action is granted to the extent that the stenographer of the trial court is directed promptly to make, certify, and file two transcripts of the proceedings of the imposition of resentence in this action, except for those minutes previously transcribed and certified (see 22 NYCRR 671.9), and that branch of the motion is otherwise denied; and it is further, ORDERED that the clerk of the trial court shall furnish one certified transcript of each of the proceedings of the imposition of resentence in this action to the appellant's retained counsel, Law Offices of Joseph Z. Amsel, PLLC, 43 West 43rd Street, Suite 265, New York, NY 10036, without charge (see CPL 460.70); retained 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 retained counsel; and it is further, ORDERED that the branch of the motion which is to be provided with to be provided with the reports prepared pursuant to CPL 730 is denied; 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 appellant and the respondent 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, or, if the appellant is self-represented and unable to upload a digital copy, to file one original copy with the Clerk of this Court, with proof of service of one hard copy on the respondent (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 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 retained counsel with a copy of the presentence report prepared in connection with the appellant's resentencing, 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 resentence is raised on appeal, or if retained 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 appeal is extended; retained 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 retained counsel or his or her 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 retained 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.
LASALLE, P.J., RIVERA, DUFFY and FORD, JJ., concur.