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Appellate Term,Second Department: Second, Eleventh And ThirteenthJudicial Districts

Decision & Order on Motions decided:April 29, 2022

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By: Aliotta, P.J., Weston, Buggs, JJ. PEOPLE v. PORTER, ANGEL — Motion by appellant for leave to prosecute an appeal from a judgment of conviction of the Criminal Court of the City of New York, Kings County, rendered January 21, 2022., 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 motion is denied. Appellant’s assigned counsel references CPL 380.55, and argues 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: *** 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 acquitted of driving while impaired, a image misdemeanor, and was “convicted” of violating New York City Traffic Rules and Regulations §4-08 (Parking, Stopping, Standing), a parking violation, and is not subject to incarceration (see People v. Garcia, 93 NY2d 42, 46 [1999]; People v. Russo, 149 AD2d 255, 258 [1989]; see also People v. Farinaro, 36 NY2d 283 [1975]). He is therefore not entitled to the assignment of counsel or poor person relief under the circumstances.  

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