Opinion
Motion No. 2023-00366 SCR
06-08-2023
The People of the State of New York, Respondent, v. Curtis L. Ellis, Appellant.
Unpublished Opinion
MOTION DECISION
JERRY GARGUILO, P.J., ELIZABETH H. EMERSON, JAMES P. McCORMACK, JJ.
DECISION & ORDER ON MOTION
Motion by appellant for leave to prosecute an appeal from a judgment of conviction of the Justice Court of the Town of Southampton, Suffolk County, rendered March 17, 2023, as a poor person, and for the assignment of counsel.
Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it is
ORDERED that the branch of the motion seeking to prosecute the appeal as a poor person is granted; and it is further
ORDERED that the court stenographer shall promptly make, certify and file two typewritten transcripts of the minutes of all proceedings, if any, with the clerk of the trial court, who is directed to furnish without charge one copy to appellant and to file the second copy of the transcript, if any, with the record, which shall then be filed with this court; and it is further, ORDERED that appellant shall serve a copy of the transcript, if any, upon the District Attorney, same to be returned upon argument or submission of the appeal; and it is further, ORDERED, on the court's own motion, that an extension of time to perfect the appeal is granted and the appeal shall be perfected by August 31, 2023; and it is further, ORDERED that the branch of the motion seeking the assignment of counsel is denied.
Appellant's assigned trial counsel references CPL 380.55, and asserts that where assigned trial counsel affirms that appellant is still eligible for assigned counsel, there is a presumption that he is entitled to assignment of counsel on appeal. CPL 380.55, as is relevant here, reads as follows:
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2. Where counsel has been assigned to represent a defendant in a criminal action on the ground that the defendant is financially unable to retain counsel, the appellate court shall presume the defendant eligible for assignment of counsel on appeal without further proof of eligibility, and, thereby, issue an order assigning such counsel, if counsel provides a sworn representation that the defendant continues to be eligible for assignment of counsel.
However, the presumption is not conclusive of the issue. Appellant was convicted of traffic infractions and is not subject to incarceration (see People v Garcia, 93 N.Y.2d 42, 46 [1999]; People v Letterio, 16 N.Y.2d 307 [1965]; People v Russo, 149 A.D.2d 255, 258 [2d Dept 1989]; see also People v Farinaro, 36 N.Y.2d 283 [1975]).