PRESENT: SCUDDER, P.J., MARTOCHE, PERADOTTO, GREEN, AND GORSKI, JJ.

KA 08-02494
Indictment No: 177-93

MOTION NO. 0594-A/96 THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V DALE KAHLEY, DEFENDANT-APPELLANT.

Appellant having moved for a writ of error coram nobis vacating the order of this Court entered May 31, 1996 affirming a judgment of Monroe County Court, rendered September 20, 1993,

Now, upon reading and filing the affidavit of Dale Kahley, sworn to November 28, 2008, the notice of motion with proof of service thereof, the affirmation of Nancy Gilligan, dated December 12, 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 the court complied with the statutory mandates of CPL 310.30. Upon our review of the trial court proceedings, we conclude that the issue may have merit. Therefore, the order of May 31, 1996 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 July 17, 2009.

Entered: March 30, 2009

JoAnn M. Wahl, Clerk