| People v Eugene D. O'halloran Sr. |
| Motion No: 100983 |
| Slip Opinion No: 2009 NYSlipOp 63389(U) |
| Decided on February 6, 2009 |
| Appellate Division, Third Department, Motion Decision |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This motion is uncorrected and is not subject to publication in the Official Reports. |
Decided and Entered: February 6, 2009
Case #
100983
THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v Appellant. | DECISION AND ORDER ON MOTION |
Motion for writ of error coram nobis to vacate decision and order of this Court in People v O'Halloran (48 AD3d
978 [2008], lv denied 10 NY3d 868 [2008]).
Defendant contends on this motion that he was denied the effective assistance of appellate
counsel upon appeal from his judgment of conviction (48 AD3d 978 [2008], lv denied 10 NY3d 868 [2008]; see People v Bachert, 69 NY2d 593
[1987]). More specifically, defendant argues that his CPL 330.30 motion to set aside the verdict should have been granted on the ground that
the People withheld statements made by the victim about the charges against him, including one recorded on videotape, and that the withholding
of those statements constituted a Rosario and/or material Brady violation (see Brady v Maryland, 373 US 83 [1963]; People v Rosario, 9 NY2d
286 [1961]; People v Hawes, 298 AD2d 706, 708 [2002], lv denied 99 NY2d 582 [2003]). We agree that this issue may have merit, and
although it was raised by appellate counsel on the appeal, counsel failed to include the materials at issue in the record on appeal, rendering the
record insufficient for meaningful review by this Court. Accordingly, the instant motion for coram nobis relief should be granted, the order of
this Court dated and entered February 28, 2008 affirming the judgment of conviction vacated, and defendant's appeal reinstated. Upon the
reinstated appeal, defendant may raise only the issue of whether the People's withholding of statements of the victim constituted a Rosario and/or
material Brady violation.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it
is
ORDERED that the motion is granted, the order of this Court dated and entered February 28, 2008 is vacated, and the appeal from the
judgment of the County Court of Broome County, rendered April 3, 2007, is reinstated.
MERCURE, J.P., PETERS, ROSE and
KAVANAGH, JJ., concur.
ENTER:
Michael J. Novack
Clerk of the Court