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MATTER HOWARD A. LEVINE v. SAM DE CESARE (05/27/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT


May 27, 1969

IN THE MATTER OF HOWARD A. LEVINE, AS DISTRICT ATTORNEY OF SCHENECTADY COUNTY, ON BEHALF OF THE MAY 1968 GRAND JURY OF SCHENECTADY COUNTY, RESPONDENT,
v.
SAM DE CESARE, ALSO KNOWN AS SMERALDO DE CESARE, APPELLANT. IN THE MATTER OF SMERALDO DE CESARE, PETITIONER, V. ROBERT G. MAIN, AS JUSTICE OF THE SUPREME COURT, RESPONDENT

Gibson, P. J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur.

The issue of appellant-petitioner's indigence referred to Honorable Ellis J. Staley, Jr., Associate Justice, to hear and report on the facts, the time and place of the hearing to be fixed in the order to be entered hereon. Notice of the hearing shall be given by the Clerk to the County Attorney of Schenectady County, in accordance with CPLR 1101, and to the chairman of the Committee on Legal Aid of the Schenectady County Bar Association, by service on them by mail of a copy of the order to be entered hereon, together with copies of the relevant affidavits on file in the clerk's office. Subpoenas for attendance of witnesses may be issued pursuant to CPLR 2302. The affidavit of the District Attorney, filed in opposition to the applications for assignment of counsel, raises sharp issues of fact with respect to the genuineness of appellant-petitioner's claim of indigence, asserting, among other things, that although appellant-petitioner asserts that he does not own property in excess of the sum of $100, he is in fact the beneficial owner of property which has been held in the names of others for the purpose of avoiding claims of creditors.

Disposition

Decisions denying applications for assignment of counsel to prosecute appeal and to prosecute a proceeding pursuant to CPLR, article 78, rescinded.

19690527

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