Opinion
Motion No. 2022-00934 SCR
05-10-2024
The People of the State of New York, Appellant, v. Kelvin J. Bonilla-Benitez, Respondent.
Unpublished Opinion
MOTION DECISION
JERRY GARGUILO, P.J. TIMOTHY S. DRISCOLL GRETCHEN WALSH, JJ.
DECISION & ORDER ON MOTION
Appeal from an order of the District Court of Suffolk County, First District, dated May 6, 2022, dismissing the accusatory instruments on speedy trial grounds. By decision and order of this court, dated December 7, 2023, the order was reversed and the accusatory instruments were reinstated (see People v. Bonilla-Benitez, 81 Misc.3d 135[A], 2023 NY Slip Op 51393[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2023]. Defendant's trial counsel, Alia F. Richards, Esq. now moves to vacate this court's decision and order; to amend this court's decision and order by removing her name as counsel to appellant; and to stay all proceedings pending assignment of new counsel to defendant.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
ORDERED that the motion is granted to the extent of vacating the court's appeal decision and order of, and staying the appeal pending notification to defendant of his right to counsel under People v Garcia (93 N.Y.2d 42 [1999]), as follows:
THE DEFENDANT IS HEREBY ADVISED
A. that he has the right to the assistance of counsel on the People's 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 may be appointed for him;
C. that he has the right to forgo the assistance of counsel and to respond to the People's appeal pro se; and
D. that unless within 60 days from the date of this order the defendant responds to the appeal pro se or by retained counsel, or moves for the appointment of counsel to represent him, or seeks an extension of time to respond to the appeal, he may be deemed to have waived his right to counsel on the appeal and it shall be considered and determined only on the People's brief and the original record; and,
ON THE COURT'S OWN MOTION, it is further, ORDERED that People are directed to serve a copy of this decision and order, together with a copy of their brief, upon the defendant, by personal delivery of the same to him; and it is further, ORDERED that 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 the defendant's time to respond to the appeal pro se or by retained counsel, or to move for the assignment of counsel, is extended until 60 days after the date of service upon him of a copy of this decision and order together with a copy of the appellant's brief, and in the event that he does not within that time so respond to the appeal, or move for the assignment of counsel, or seek an extension of time to respond to the appeal, the defendant may be deemed to have waived his right to counsel, and the appeal shall be considered and determined only on the People's brief and original record; and it is further, ORDERED that if personal service of a copy of this decision and order cannot be made with due diligence, the People may make an 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 defendant personally.
It should be noted that the foregoing vacatur of the court's appeal decision and order is due wholly to trial counsel's dereliction of her duty, despite receiving numerous notices from the court, to inform the court that she did not represent the defendant on appeal.