PRESENT: HURLBUTT, J.P., GORSKI, MARTOCHE, AND GREEN, JJ.

KA 03-02274
Indictment No: 01586-2002

MOTION NO. 1493/05 PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V HABIB F. JOHNSON, DEFENDANT-APPELLANT.

Appellant having moved for a writ of error coram nobis vacating the order of this Court entered December 22, 2005 affirming a judgment of Supreme Court entered in the Office of the Clerk of the County of Erie on July 31, 2003,

Now, upon reading and filing the affidavit of Habib F. Johnson, sworn to August 6, 2007, the notice of motion with proof of service thereof, the opposing affidavit of Raymond C. Herman, sworn to August 21, 2007, and due deliberation having been had thereon,

It is hereby ORDERED that the motion be and the same hereby is granted.

Memorandum: Defendant contends that he was denied effective assistance of appellate counsel because appellate counsel failed to raise an issue on appeal that would have resulted in reversal, specifically, that trial counsel was ineffective in failing to move to dismiss specifically the first count of the indictment on the ground of insufficient evidence. Upon our review of the trial court proceedings, we conclude that the issue may have merit. Therefore, the order of December 22, 2005 is vacated and this Court will consider the appeal de novo (see People v LeFrois, 151 AD2d 1046). Defendant is directed to perfect his appeal pursuant to 22 NYCRR part 1000 on or before November 27, 2007.

Entered: September 28, 2007

JoAnn M. Wahl, Clerk