PRESENT: SCUDDER, P.J., CENTRA, LUNN, GREEN, AND GORSKI, JJ.

KA 08-00201

MOTION NO. 1669/90 PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V BENJAMIN RIVERA, DEFENDANT-APPELLANT. Indictment No: 687/88

Appellant having moved for a writ of error coram nobis vacating the order of this Court entered February 1, 1991 affirming a judgment of Monroe County Court entered in the Office of the Clerk of the County of Monroe on July 21, 1989,

Now, upon reading and filing the affidavit of Benjamin Rivera, sworn to January 23, 2008, the notice of motion with proof of service thereof, the opposing affirmation of Leslie E. Swift, dated February 14, 2008, the affidavit of Benjamin Rivera, sworn to February 26, 2008, 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 counsel failed to raise an issue on direct appeal that would have resulted in reversal, specifically, in failing to argue that the court's jury instruction distorted the "course and furtherance" element of felony murder. Upon our review of the trial court proceedings, we conclude that the issue may have merit. Therefore, the order of February 1, 1991 is vacated and this Court will consider the appeal de novo (see People v LeFrois, 151 AD2d 1046 [1989]). Defendant is directed to file and serve his records and briefs with this Court on or before September 4, 2008.

Entered: June 6, 2008

JoAnn M. Wahl, Clerk