PRESENT: SCUDDER, P.J., MARTOCHE, CENTRA, FAHEY, AND PERADOTTO, JJ.

MOTION NO. 241-08
KA 07-00049
Indictment No: 06-477-05

PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V CLIFFORD K. PICKETT, DEFENDANT-APPELLANT.

Appellant having moved for a writ of error coram nobis vacating the order of this Court entered March 14, 2008 affirming a judgment of Jefferson County Court rendered October 6, 2006,

Now, upon reading and filing the affidavit of Clifford Pickett, Jr., sworn to August 25, 2009, the notice of motion with proof of service thereof, the opposing affidavit of Cindy F. Intschert sworn to September 22, 2009, 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 County Court erred in ordering restitution inasmuch as it was not a part of the plea bargain. Upon our review of the trial court proceedings, we conclude that the issue may have merit. Therefore, the order of March 14, 2008 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 on or before January 12, 2010.

Entered: November 13, 2009

Patricia L. Morgan, Clerk