By Rivera, J.P.; Sgroi, Hinds-Radix and Iannacci, JJ.MATTER of Guadalupe Vidal Martinez, pet-res, v. Everado Isrrael Martinez, res — On the Court’s own motion, it isORDERED that the decision and order on motion of this Court dated March 15, 2018, in the above-entitled case is recalled and vacated, and the following decision and order on motion is substituted therefor:Appeals from two orders of the Family Court, Queens County, both dated November 15, 2017. By order to show cause dated January 29, 2018, the parties were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeals in the above-entitled proceeding on the ground that Edwin A. Gonzalez, identified as the appellant on the notice of appeal, was not aggrieved by the orders dated November 15, 2017.Now, upon the order to show cause and the papers filed in response thereto, it isORDERED that on the Court’s own motion, the notice of appeal is deemed to have been filed by Everado Isrrael Martinez, as the proper party appellant (see CPLR 2001; Matter of Tagliaferri v. Weiler, 1 NY3d 605); and it is further,ORDERED that the motion to dismiss the appeals is denied; and it is further,ORDERED that pursuant to §670.4(a) of the rules of this Court (22 NYCRR 670.4[a]), the appeals in the above-entitled proceeding shall be perfected within 60 days after the receipt by the appellant of the transcripts of the minutes of the proceedings in the Family Court, and the appellant shall notify this Court by letter of the date the transcripts are received, or, if there are no minutes of proceedings to be transcribed, within 60 days of the date of this decision and order on motion; and it is further,ORDERED that pursuant to §670.4(a) of the rules of this Court (22 NYCRR 670.4[a]), within 30 days after the date of this decision and order on motion, the appellant shall file in the office of the Clerk of this Court one of the following:(1) an affidavit or affirmation stating that there are no minutes of the Family Court proceedings to be transcribed for the appeals; or(2) if there are such minutes, an affidavit or affirmation stating that the transcript has been received, and indicating the date that it was received; or(3) if the transcript has not been received, an affidavit or affirmation stating that it has been ordered and paid for, the date thereof, and the date by which the transcript is expected; or(4) if the appellant is indigent and cannot afford to obtain the minutes or perfect the appeals, a motion in this Court for leave to prosecute the appeals as a poor person and for the assignment of counsel, pursuant to the requirements of CPLR 1101. Such a motion must be supported by an affidavit from the appellant, stating either that he or she qualified for assigned counsel upon application to the Family Court and that his or her financial status has not changed since that time, or that he or she had retained counsel or appeared pro se in the Family Court, and listing his or her assets and income; or(5) an affidavit or an affirmation withdrawing the appeals; and it is further,ORDERED that if none of the actions described in (1), (2), (3), (4), or (5) above has been taken within 30 days of the date of this decision and order on motion, the Clerk of this Court shall issue an order to all parties to the appeals to show cause why the appeals should or should not be dismissed.RIVERA, J.P., SGROI, HINDS-RADIX and IANNACCI, JJ., concur.
By Rivera, J.P.; Dillon, Duffy and Iannacci, JJ.MATTER of State of New York, petitioner- res, v. Anthony B. (Anonymous), res-res — Appeal from an order of the Supreme Court, Queens County, dated March 1, 2016. By decision and order on motion dated August 9, 2017, this Court granted the petitioner-respondent’s motion for an order remitting this matter to the Supreme Court, Queens County, for the purpose of conducting a Frye hearing (see Frye v. United States, 293 F. 1013), and to hold the appeal in abeyance pending the conclusion of the Frye hearing. Upon remittitur, the Supreme Court, Queens County, issued a report dated March 12, 2018, in which it stated that it was bound to follow the determination of this Court in Matter of State of New York v. Richard S. (__ AD3d __; 2018 NY Slip Op 01072), that even if it conducted a Frye hearing in connection with the appeal in the above-entitled matter and found that the diagnosis of “Other Specified Paraphilic Disorder (Non-Consent)” had achieved general acceptance in the psychiatric and psychological communities, such determination “would be of no moment to the issues raised on the appeal,” and that it would await any further instructions from this Court as to whether to conduct a Frye hearing.Now, on the Court’s own motion, and upon the report of the Supreme Court, Queens County, dated March 12, 2018, it isORDERED that the matter is again remitted to the Supreme Court, Queens County, for the purpose of conducting a Frye hearing on the question of whether, under the particular circumstances of this case, the diagnosis of “Other Specified Paraphilic Disorder (Non-Consent)” has achieved general acceptance in the psychiatric and psychological communities so as to make expert testimony on that diagnosis admissible and for a report thereafter; the Supreme Court, Queens County, shall conduct such hearing and file its report to this Court with all convenient speed; and it is further,RIVERA, J.P., DILLON, DUFFY and IANNACCI, JJ., concur.
