PRESENT: SCUDDER, P.J., HURLBUTT, SMITH, AND GORSKI, JJ.

KA 03-02629
Indictment No: 2003-0103-1

MOTION NO. 1655/05 PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V DAVON M. GRIFFIN, 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 Onondaga County Court, rendered August 11, 2003,

Now, upon reading and filing the affidavit of Davon Griffin, sworn to December 4, 2008, the notice of motion with proof of service thereof, the affirmation of James P. Maxwell, dated December 29, 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, whether defendant received an illegal sentence because of noncompliance with the statutory mandates of CPL 400.21. 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 [1989]). Defendant is directed to file and serve his records and briefs with this Court on or before June 5, 2009.

Entered: February 6, 2009

JoAnn M. Wahl, Clerk