Opinion
2012-05217 Ind. No. 607/11 M146399
01-04-2013
The People, etc., respondent, v. Malcolm Washington, appellant.
, J.P.
PLUMMER E. LOTT
LEONARD B. AUSTIN
SANDRA L. SGROI, JJ.
DECISION & ORDER ON MOTION
Appeal by Malcolm Washington from a judgment of the Supreme Court, Kings County, rendered December 2, 2011. By order to show cause dated September 13, 2012, the appellant was directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal on the ground that the notice of appeal was untimely and the defendant did not seek leave to file a late notice of appeal. Motion by the appellant pro se, in effect, pursuant to CPL 460.30 for an extension of time to take the appeal, for leave to prosecute the appeal as a poor person, and for the assignment of counsel.
Now, upon the order to show cause and the papers filed in response thereto, and upon the papers filed in support of the appellant's motion and the papers filed in opposition thereto, it is
ORDERED that the motion to dismiss the appeal is denied; and it is further,
ORDERED that the appellant's motion is granted, and the moving papers are deemed to constitute a timely notice of appeal; 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 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 any pretrial hearings, of the plea of guilty or of the trial, 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 in the event that the case was tried to a conclusion before a jury, the stenographer shall also make, certify, and file two transcripts of the minutes of proceedings during jury selection; 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 appellant's counsel, without charge (see CPL 460.70); assigned 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 assigned counsel; and it is further,
ORDERED that upon service of a copy of this order upon it, the Department of Probation is hereby authorized and directed to provide assigned counsel with a copy of the presentence report prepared in connection with the defendant's sentencing, including the recommendation sheet and any prior reports on the defendant which are incorporated in or referred to in the report; and it is further,
ORDERED that in the event an issue as to the legality, propriety, or excessiveness of the sentence is raised on appeal, or if assigned 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 pursuant to County Law § 722 the following named attorney is assigned as counsel to prosecute the appeal:
Lynn W. L. Fahey, Esq.
Appellate Advocates
2 Rector Street - 10th Floor
New York, New York 10006
and it is further,
ORDERED that the appellant's time to perfect the appeal is enlarged; assigned counsel shall prosecute the appeal 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 assigned 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 assigned 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.
MASTRO, J.P., LOTT, AUSTIN and SGROI, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court