Statement Pursuant to
N.Y.Ct. Rules §670.10.3(g)(2)(viii)
(A) There is no order issued pursuant to CPL §460.50 outstanding.
(B) There are no Co-Defendants in this case.
Statement of the Questions Involved
- Whether the District Attorney had sufficient grounds to seek an upward modification of Defendant-Appellant’s Sex Offender Risk Level.
Answer of the Court Below: Yes.
- Whether the evidence submitted by the District Attorney in support of their application for an upward modification of Defendant-Appellant’s Sex Offender Risk Level was admissible.
Answer of the Court Below: Yes.
- Whether the evidence submitted by the District Attorney was of sufficient weight for the Court to find that the People met their burden of proving facts supporting the requested upward modification by clear and convincing evidence.
Answer of the Court Below: Yes.
STATEMENT OF ESSENTIAL FACTS
On January 3, 2012, in the County Court of Westchester County, a Sex Offender Risk Level Modification Hearing was held upon a petition of the District Attorney, Westchester County, for an upward modification of Defendant-Appellant’s risk level from level one to level three, pursuant to Section 168-O of Article 6C of the Corrections Law, commonly known as the Sex Offenders Registration Act (“SORA”). At said hearing, thirteen (13) exhibits were admitted into evidence in support of the Peoples’ petition without objection. There was no witness testimony. The thirteen (13) exhibits admitted into evidence at the hearing were purported by the District Attorney to establish the following facts:
People’s Exhibit One
Defendant-Appellant was charged via Westchester County Superior Court Information No. 99-997 with the crime of Attempted Disseminating Indecent Material to a Minor in the First Degree, in violation of Section 110/235.22 of the New York State Penal Law. The offense is alleged to have occurred on August 2, 1999.
People’s Exhibit Two
Defendant-Appellant was charged via Westchester County Felony Complaint, dated August 2, 1999, with the crime of Attempted Disseminating Indecent Material to a Minor in the First Degree, in violation of Section 110/235.22 of the New York State Penal Law. In support of the charge, the Felony Complaint states the following:
Complainant, while acting in an undercover capacity, portrayed himself as a fifteen year old male and engaged in a “chat” conversation with the defendant through America Online [AOL]. The defendant sent an instant message to Complainant while Complainant was on-line. On July 25, 1999, defendant engaged the Complainant in a sexually explicit on-line conversation and discussed the sexual activity of both of them. The defendant also asked about meeting with the Complainant and taking Complainant to his house. In addition to the conversation, the defendant sent Complainant a picture of himself without any clothes. On July 27, 1999, the defendant and the Complainant had another on-line “chat” conversation in which the defendant described in detail how he would engage in sexual activities with the Complainant. On July 28, 1999, defendant sent an e-mail to the Complainant requesting Monday, August 2, 1999 as a day to meet.
The next day Complainant replied that they could meet outside the White Plains Public Library. On July 31, 1999, the defendant sent another e-mail to the Complainant in which he stated that he is taking Monday off and the (sic) he will “show you [Complainant] some HOT things…” On August 2, 1999, the defendant sent another e-mail to the Complainant, this time stating that he will meet at 1:30 p.m. and that he will be wearing black sweat pants, a white t-shirt and a blue cap. On that same day, as had been arranged by the defendant, Complainant met the defendant at the cut-out in front of the White Plains Public Library in White Plains, New York. The defendant had stated that he would drive a red Toyota Cressida and he did arrive in such a car, he also wore the same clothing that he had stated in his e-mail of that morning.
People’s Exhibit Three
On April 14, 2000, a “Sentence and Commitment” sheet was prepared for Defendant-Appellant, indicating that he was convicted of Attempted Dissemination of Indecent Material to Minors in violation of Penal Law Section 110/235.22, and was sentenced to five (5) years probation with “Special Sex Offender Conditions noted in the “Remarks” (People’s Exhibit Number Three).
People’s Exhibit Four
On May 10, 2000, Defendant-Appellant signed a document containing the title: “Special Orders and Conditions of Probation: Sex Offenders,” indicating that he had received a copy of said document, and that the conditions contained therein had been read and reviewed with him, that he understands them and agrees to abide by them. Specification 20 of said “Special Orders and Conditions of Probation: Sex Offenders” states the following:
You shall not participate in any on-line computer service that involves the exchange of pornographic electronic messages or establishes sexual encounter liaisons.
People’s Exhibit Five
On April 11, 2000, the Westchester County Probation Department completed a Pre-Sentence Investigation Report. The report is apparently a two-sided page document, however, only the odd numbered pages of said are contained in the record of the SORA Hearing in issue. The report provides a description of the offense that is consistent with the description contained in the Felony Complaint. The report attributes a statement to the Defendant-Appellant in which he admitted that “the (undercover) agent told him he was fifteen years old” and the Defendant-Appellant stated “he found that (the undercover agent’s) reported age was irrelevant.”
People’s Exhibit Six
On March 25, 2005, the Putnam County Probation Department filed a Violation of Probation which alleged that the Defendant-Appellant “used the internet to exchange pornographic electronic messages and pornographic images…(and) had been involved in such activity since about January 2005.”
People’s Exhibit Seven
On June 29, 2005, a “Sentence and Commitment” sheet was prepared for Defendant-Appellant, which indicates that on June 22, 2005, Defendant-Appellant admitted to a violation of Specification 20 of his conditions of probation, and was sentenced to 38 days jail to be served on weekends, and to an extension of the term of his probation of one year, to end on April 13, 2006.
People’s Exhibit Eight
The People submitted a “Certificate of Conviction,” dated June 20, 2011, from the Pawling Village Court, Criminal Part, Dutchess County, New York, indicating that on August 13, 2009, Defendant-Appellant was convicted of Endangering the Welfare of a Child pursuant to Penal Law Section 260.10(1).
People’s Exhibit Nine
The People submitted an Accusatory Instrument from the Pawling Village Court, Criminal Part, Dutchess County, New York, indicating that Defendant-Appellant had been accused of Endangering the Welfare of a Child, a misdemeanor, in violation of Penal Law Section 260.10(1), based upon the following facts:
The said defendant, Francis Redacted, between the 15th and 17th of July 2008, at 63 Main St. in the Village of Pawling, did communicate explicit sexual material electronically and did engage in sexual acts with 16 year old Christian Can, whose date of birth is 04/10/1992.
People’s Exhibit Ten
The People submitted a “Pre-Sentence Investigation Report” from the Dutchess County Office of Probation, dated November 6, 2009. The report is apparently a two-sided page document, however, only the odd numbered pages of said are contained in the record of the SORA Hearing in issue.
The report attributes the following statements to the Defendant-Appellant:
- a) The victim told him that he (the victim) was eighteen years old, and although the boy never showed (Defendant-Appellant) any identification, the victim indicated that he was in college: “He knew what to say.”
- b) The Defendant-Appellant refused to state whether he used a condom during sexual contact with the boy, stating that use of a condom was not relevant.
- c) The Defendant-Appellant was sorry that it happened, that the victim might have been traumatized or harmed emotionally or psychologically, and there might be affects upon his family or school life but, “He (the victim) put himself in a situation that was unnecessary.”
The report notes the following:
- a) A Violation of Probation was filed when Officer Matrigaly found an illicit computer hidden behind rubbish in a crawl space.
- b) Defendant-Appellant was given two (2) psycho-sexual evaluations. He placed as a high moderate risk on the first, and as a high risk on the second. His score placed him at a “24.8-39% chance that he will be convicted for a new sexual offense in five years, and a 36.9-45% chance that he will be convicted for a new sexual offense in ten years.
The report states the following in its “Evaluative Analysis:”
- a) Defendant-Appellant takes little responsibility for his behavior, and blames the child for deceiving him. Additionally, he minimized the extent of his offense.
People’s Exhibit Eleven
The People submitted an “Order and Conditions of Probation”, dated November 11, 2009, indicating that Defendant-Appellant was convicted of Endangering the Welfare of a Child, a misdemeanor, in violation of Penal Law Section 260.10(1), and sentenced to 3 years probation. Defendant Appellant signed his name to the document on November 12, 2009. Although said “Order and Conditions of Probation,” at specification 13, states: “You will comply with all provisions of the Sex Offender Registration Act (S. 11b, Chapter 192, L. 1995),” it does not specify any other particular prohibitions relating to sexual conduct.
On July 8, 2010, the Hon. Louis DiCarlo of the Putnam Valley Justice Court signed an “Order Enlarging Conditions of Probation,” but there is nothing in the record to indicate that said Order was served upon Defendant-Appellant (see People’s Exhibit 11, third page thereof).
On April 14, 2011, the Hon. Louis DiCarlo signed a Court Order based upon an application by the Putnam County Probation Department directing Defendant-Appellant to appear before the Court (see People’s Exhibit 11, fourth page thereof). Said Court Order was based upon an allegation that on March 15, 2011, the Appellant-Defendant “was found to be in possession of a photograph of an erect penis located on the defendant’s cell phone.” The application further states that “the Putnam County Probation Department requests that the Court order the Probationer to appear personally before the Court…so that the Court may entertain the Department’s request that the Probationer’s conditions of probation be enlarged as follows: To mandate the inclusion of Putnam County Probation Department’s Terms and Conditions of Sex Offenders.”
People’s Exhibit Twelve
The People submitted a “Violation of Probation” report alleging that on March 15, 2011, the Appellant-Defendant “was found to be in possession of a photograph of an erect penis located on the defendant’s cell phone.” It was alleged that the possession of said photograph violated the following condition of Defendant-Appellant’s probation: “You shall not purchase, possess or view books, magazines, videotapes, forms or other materials which depict nudity, or actual or simulated sexual conduct of any kind.” However, the cited condition alleged to have been violated was only contained in the “Order Enlarging Conditions of Probation,” dated July 8, 2010 (see People’s Exhibit 11, third page thereof). As stated above, there is nothing in the record to indicate that Defendant-Appellant was served with said “Order Enlarging Conditions of Probation,” dated July 8, 2010, or otherwise with a condition of probation prohibiting his possession of a pornographic image.
People’s Exhibit Thirteen
On September 23, 2011, an updated recommendation regarding the sex offender risk level of Defendant-Appellant, drafted by the State of New York Board of Examiners of Sex Offenders, was received by the Hon. Susan Cacace, C.C.J. Said updated was admitted into evidence without objection. The recommendation recommends that Defendant-Appellant’s ”Risk Level I status now be modified upwards to a Level III risk for reoffending.” The Board of Examiners noted that “much of (Defendant-Appellant’s) recent conduct which was either prohibited by registry requirements and/or Orders and Conditions of probation occurred while he continued under active supervision.” The Board of Examiners noted that the (Defendant-Appellant) continues to demonstrate disregard for his terms and conditions of probation and animus for the justice system.” The (Defendant-Appellant’s) “penchant for initiating relationships with adolescent males, seemingly would support the District Attorney’s contention that (Defendant-Appellant’s) current Level I designation should be modified upwards.”
People’s Affirmation in Support of Petition for Modification of
Sex Offender Risk Level, dated June 27, 2011
The Westchester County District Attorney’s Office filed a “Petition for Modification of Sex Offender Risk Level,” with an Affirmation of an Assistant District Attorney from that office dated June 27, 2011 (Affirmation in Support of Petition), which set out the following facts:
- a) Defendant-Appellant pled guilty on January 11, 2000, to one count of Attempted Disseminating Indecent Material to a Minor in the First Degree, in violation of Section 110/235.22 of the New York State Penal Law, under Superior Court Information No. 99-997;
- b) On May 11, 2000, probationary supervision of Defendant-Appellant, as well as jurisdiction over any violation of conditions of probation by Defendant-Appellant, was transferred from Westchester County to Putnam County, which was Defendant-Appellant’s residence county.
- c) On December 11, 2002, Defendant-Appellant was assessed a “Level 1” risk to re-offend pursuant to New York’s Sex Offender Registration Act.
- d) During his probationary sentence, Defendant-Appellant made admissions to his probation officer to the effect that he has a “strong propensity for adolescent boys and that he is not interested in or attracted to men his own age.” He further admitted that “driving past the High School (on his way to probation) made him feel like a kid in a candy store because of all the adolescent boys hanging out in front of the school.”
- e) On August 13, 2009, Defendant-Appellant pled guilty to Endangering the Welfare of a Child in the Village of Pawling Justice Court, Dutchess County, New York. Further, upon speaking with an Assistant District Attorney in the Dutchess County District Attorney’s Office, it was ascertained that this conviction was a negotiated disposition that was entered in lieu of a re-trial of two counts of Criminal Sexual Act in the Third Degree, which were the counts that remained following a hung jury in a criminal trial on allegations of sexual conduct by Defendant-Appellant and a sixteen year old victim.
- f) On or about January 6, 2010, while under probationary supervision, the Defendant-Appellant admitted to his Probation Officer that he had failed to provide all of his internet identifiers, social networking sites an screen names to the Division of Criminal Justice Services.
SORA Re-Classification Hearing
On January 3, 2012, a hearing on the issue of Defendant-Appellant’s appropriate sex offender classification was held before the Hon. Susan Cacace, C.C.J., in the County Court of Westchester County. The District Attorney relied upon the above referenced exhibits, called no witnesses, did not offer any victim’s statement, and offered no other evidence. The Defendant-Appellant did not testify.
Decision and Order
On February 23, 2012, Judge Cacace issued a Decision and Order granting the People’s application for an upward modification of Defendant-Appellant’s risk level, from Level I to level III offender.
In said Decision and Order, the Court found that the People relied upon:
- a) The facts contained in court records from the County Court of Putnam including a petition for a violation of probation as well as the sentence and commitment which resulted from the violation proceedings;
- b) The Court records from the Village Court of the Village of Pawling in which the Defendant-Appellant was convicted of Endangering the Welfare of a Child; and
- c) Records of a violation of probation proceeding which was held in the Town Court of the Town of Putnam Valley in 2011.
From the above mentioned records, the Court held that the People had proven the following facts by clear and convincing evidence:
- a) The Defendant-Appellant, subsequent to his adjudication as a level I sex offender, used the internet to transfer pornographic electronic messages and images;
- b) Admitted to having a strong propensity for adolescent boys;
- c) Engaged in illegal sexual conduct with a minor;
- d) Admitted to failing to inform his probation officer of all of his internet identifier information.
The Court then went on to conclude that, “These actions constitute repeated acts of sexual misconduct and demonstrate a continuing course of recidivism. The defendant has clearly repeatedly re-offended and there is nothing to indicate that there exists anything less than a high risk that he will continue to re-offend.
The Court then granted the People’s application for an upward modification of the Defendant-Appellant’s risk level to Level III offender.
STATEMENT REGARDING NON-FRIVOLOUS ISSUES
Having reviewed the entire record and the applicable law, I have found no non-frivolous issues which can be raised on this appeal.
LEGAL ANALYSIS OF ISSUES
PRESENTED BY THE RECORD
Issue One
Whether the District Attorney had
Sufficient Grounds to Seek
An Upward Modification of
Defendant-Appellant’s Risk Level
Corrections Law Section 168-o, Subdivision 3, provides a mechanism for the District Attorney to seek an upward modification of the risk level of a sex offender:
The district attorney may file a petition to modify the level of notification for a sex offender with the sentencing court or with the court which made the determination regarding the level of notification, where the sex offender (a) has been convicted of a new crime, or there has been a determination after a proceeding pursuant to section 410.70 of the criminal procedure law…that the sex offender, has violated one or more conditions imposed as part of a sentence of … probation…for a designated crime, and (b) the conduct underlying the new crime or the violation is of a nature that indicates an increased risk of a repeat offense.
There is nothing contained in the statute indicating a limitation upon the length of time between a petition for upward modification, and either a conviction of a new crime or a violation of a condition of probation.
Based upon the evidence admitted at the SORA hearing, the following was established:
- a) In June of 2005, Defendant-Appellant violated a condition of his probation that entailed his “use of the internet to exchange pornographic electronic messages and pornographic images;”
- b) In June of 2011, Defendant-Appellant was convicted of Endangering the Welfare of a Child, and that his underlying criminal acts entailed communication of “explicit sexual material electronically and…sexual acts with 16 year old Christian Can.”
Conclusion: Issue One
Defendant-Appellant has met two of the qualifiers that enable the People to seek an upward modification of his sex offender risk level: he has been convicted of a new crime, and has been adjudicated for a violation of a condition of his probation, both of which are of a nature that indicates an increased risk of a repeat offense.
Issue Two
Whether the Evidence
Submitted by the District
Attorney in Support of their
Application for an Upward
Modification of Defendant-
Appellant’s Sex Offender
Risk Level was Admissible
Regarding the conduct of a Determination Proceeding, Corrections Law Section 168-o(4) states,
After reviewing the recommendation received from the board and any relevant materials and evidence submitted by the sex offender and the district attorney, the court may grant or deny the petition.
Regarding the sufficiency of evidence, Corrections Law Section 168-n(3) states the following:
In making the determinations the court shall review any victim’s statement and any relevant materials and evidence submitted by the sex offender and the district attorney and the recommendation and any materials submitted by the board, and may consider reliable hearsay evidence submitted by either party, provided that it is relevant to the determinations.
The Court of Appeals, in the case of People v. Mingo, 12 NY3d 563 (2009), offered the following in regard to what constitutes “Reliable Hearsay:”
The Board of Examiners of Sex Offenders is charged with producing accurate case summaries as an integral part of its functions and it has expertise culling through records to produce a concise statement of the factual information relevant to defendant’s risk of reoffense. Similarly, to assist the court in imposing an appropriate sentence, probation departments are charged with gathering a wide variety of information for inclusion in presentence reports…
Case summaries and presentence reports are prepared with the knowledge that they will be relied on by courts. No foundation is necessary for their consideration at SORA hearings because such documents are created under statutory mandates and their origins and function are well-known to SORA courts (internal citation omitted).
* * * * * * * *
But case summaries and presentence reports certainly meet the “reliable hearsay” standard for admissibility at SORA proceedings.
* * * * * * * *
Other sworn documents have also been consistently accepted by SORA courts, including misdemeanor and felony complaints (internal citations omitted). Similar to case summaries and presentence reports, no foundation is necessary to justify receipt of this type of evidence at a SORA hearing because the circumstances surrounding the development of the proof are evident from the face of the document and are well understood by a SORA court.
* * * * * * * *
We conclude that hearsay is reliable for SORA purposes – and, therefore admissible – if, based on the circumstances surrounding the development of the proof, a reasonable person would deem it trustworthy.
It is impossible to list the types of evidence that will meet this standard because the proof will vary depending on the circumstances of the case.
* * * * * * * *
SORA courts must have the flexibility to make reliability determinations on a case-by-case basis.
Id., at 572 – 574.
Based upon the standard elucidated by the Court of Appeals in Mingo, the following documents admitted into evidence at the Defendant-Appellant’s SORA hearing constituted reliable hearsay, and were relevant upon the issues of whether Defendant-Appellant had been convicted of a new crime, and/or had been adjudicated in violation of one or more conditions of his probation, and whether the conduct underlying the new crime and/or the violation were of a nature that indicates an increased risk of a repeat offense:
Exhibit Four: The “Special Orders and Conditions of Probation: Sex Offenders,” bearing Defendant-Appellant’s signature, and including Specification 20 which states:
You shall not participate in any on-line computer service that involves the exchange of pornographic electronic messages or establishes sexual encounter liaisons.
Exhibit Six: The Putnam County Violation of Probation which alleged that the Defendant-Appellant “used the internet to exchange pornographic electronic messages and pornographic images…(and) had been involved in such activity since about January 2005;”
Exhibit Seven: The “Sentence and Commitment” sheet which indicates that on June 22, 2005, Defendant-Appellant admitted to a violation of Specification 20 of his conditions of probation;
Exhibit Eight: The “Certificate of Conviction,” dated June 20, 2011, from the Pawling Village Court, Criminal Part, Dutchess County, New York, indicating that on August 13, 2009, Defendant-Appellant was convicted of Endangering the Welfare of a Child pursuant to Penal Law Section 260.10(1);
Exhibit Nine: The Accusatory Instrument from the Pawling Village Court, Criminal Part, Dutchess County, New York, indicating that Defendant-Appellant had been accused of Endangering the Welfare of a Child, based upon the following facts:
The said defendant, Francis Redacted, between the 15th and 17th of July 2008, at 63 Main St. in the Village of Pawling, did communicate explicit sexual material electronically and did engage in sexual acts with 16 year old Christian Can, whose date of birth is 04/10/1992.
Exhibit Ten: The “Pre-Sentence Investigation Report” from the Dutchess County Office of Probation, dated November 6, 2009.
The Updated Recommendation, dated September 23, 2011, from the State of New York Board of Examiners of Sex Offenders.
Conclusion: Issue Two
At minimum, Exhibits Four, Six, Seven, Eight, Nine, and Ten, and the Updated Recommendation from the State of New York Board of Examiners of Sex Offenders, were all admissible at Defendant-Appellant’s SORA Hearing.
Issue Three
Whether the Evidence Was
Of Sufficient Weight
for the Court to Find
That the People Met Their
Burden of Proving Facts
Supporting the Requested
Upward Modification by Clear
And Convincing Evidence
Corrections Law Section 168-o(3) states,
The district attorney shall bear the burden of proving the facts supporting the requested modification, by clear and convincing evidence.
Pattern Jury Instructions, PJI 1:64 (Third Edition, 2011), states the following regarding the evidentiary standard of “Clear and Convincing Evidence:”
A party who must prove (his, her) case by a preponderance of the evidence only need satisfy you that the evidence supporting (his, her) case more nearly represents what actually happened than the evidence which is opposed to it. But a party who must establish (his, her) case by clear and convincing evidence must satisfy you that the evidence makes it highly probable that what (he, she) claims is what actually happened.
See Ausch v. St. Paul Fire &Mar. Ins. Co., 125 AD2d 43 (2nd Dept. 1987).
Correction Law Section 168-d(3) states the following:
Facts previously proven at trial or elicited at the time of entry of a plea of guilty shall be deemed established by clear and convincing evidence and shall not be relitigated.
Exhibits Six and Seven establish that Defendant-Appellant, while on probation stemming from his 2000 conviction, violated the terms of his probation when he “used the internet to exchange pornographic electronic messages and pornographic images,” and thus, this point is deemed established by clear and convincing evidence.
Exhibit Eight establishes that Defendant-Appellant committed the crime of Endangering the Welfare of a Child, and thus, this point is deemed established by clear and convincing evidence.
Much of the other evidence submitted by the district attorney satisfies the standard for clear and convincing evidence stated in PJI 1:64.
Conclusion: Issue Three
The evidence submitted by the district attorney at Defendant-Appellant’s SORA Hearing was of sufficient weight for the Court to find that the People met their burden of proving, by clear and convincing evidence, facts supporting the requested modification from Level One to Level Three Sex Offender.
REQUEST TO BE RELIEVED
It is respectfully requested that I be relieved as counsel for Defendant-Appellant.
STATEMENT REGARDING
COMMUNICATION WITH,
AND SERVICE UPON
DEFENDANT-APPELLANT
On July 29, 2013, I sent Defendant-Appellant a two page letter detailing my review of the record of his case via U.S. Mail, together with a draft copy of this brief. In the draft brief, I set out my analysis of the following issues:
- Whether the District Attorney had sufficient grounds to seek an upward modification of Defendant-Appellant’s Sex Offender Risk Level;
- Whether the evidence submitted by the District Attorney in support of their application for an upward modification of Defendant-Appellant’s Sex Offender Risk Level was admissible;
- Whether the evidence submitted by the District Attorney was of sufficient weight for the Court to find that the People met their burden of proving facts supporting the requested upward modification by clear and convincing evidence.
In the letter, I stated that I could not find any non-frivolous or meritorious issues to support an appeal.
I explained to the Defendant-Appellant that if he disagreed with my analysis of his case, he retains the absolute right to continue with his appeal, and that I would not communicate anything to the Court of a derogatory nature about him or his case. However, I stated that I would be compelled to notify the Court of the result of my analysis and findings, and would seek to be withdrawn as his counsel. I provided the case citation for Anders v. California, 386 U.S. 738 (1967), and explained that pursuant to its protocol, it would remain the decision of the Court, and not me, whether his appeal has any merit. I advised him of his right to file a pro se supplemental brief, and receive a copy of the minutes of his hearing, and that he may exercise his right by advising the Appellate Division in writing of his intention to do so within thirty (30) days of the mailing of a copy of my final brief, and a cover letter which I would send him. I provided Defendant-Appellant with the mailing address of the Appellate Division as follows:
Assigned Counsel Clerk
Appellate Division, Second Department
45 Monroe Place
Brooklyn, NY 11201
Lastly, I urged Defendant-Appellant to contact me if he had any questions, or issues he wished to discuss. A copy of the letter is attached as Exhibit A.
On August 1, 2013, I was contacted by Defendant-Appellant via telephone. I discussed with him the merits of his appeal, the methodology of my review of the upward modification of his sex offender risk level, and the process if he wishes to continue with his appeal. I answered all of the questions he posed, and upon the termination of the phone call he indicated that he was satisfied with my explanations.
A copy of the cover letter which accompanied the completed brief which I sent to Defendant-Appellant, together with an Affirmation of Service, is attached as Exhibit B.
SERVICE UPON
THE DISTRICT ATTORNEY
An Affirmation of Service attesting to the service of a copy of this brief together with the copy of the transcript that I received from the clerk of the trial court, upon the offices of the District Attorney, Westchester County, is attached as Exhibit C.
SERVICE UPON
THE TRIAL COURT
An Affirmation of Service attesting to the service of a copy of the Decision & Order on Motion – Motion for Poor Person Relief and to Assign Counsel, is attached as Exhibit D.
An Affirmation of Service attesting to the service of a subpoena calling for the papers constituting the original record, and directing them to be filed with the Clerk of the Appellate Division, Second Department, is attached as Exhibit E.
CERTIFICATION OF COMPLIANCE
Pursuant to Rule 670.10.3(f)
MICHAEL F. DAILEY, an attorney duly licensed to practice under the laws of the State of New York, does hereby certify, pursuant to the rules of this Court, that the heretofore produced Brief was prepared on a computer, the typeface is Times New Roman, the point size is 14, the line spacing is double except for quotations and headings, and the word count as per my processing system used to prepare the brief is 4,963.
Dated: August 5, 2013
___________________________
Michael F. Dailey
Attorney for Defendant-Appellant
One Riverdale Avenue
Suite One, Mailbox Eleven
Bronx, New York 10463
(718)543-0100
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(718) 618-5995
