PRESENT: HURLBUTT, J.P., CENTRA, PERADOTTO, GREEN, AND GORSKI, JJ.

MOTION NO. 1203-08
KA 07-02291
Indictment No: 2004-966

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V DAVID C. WILLIAMS, DEFENDANT-APPELLANT.

Appellant having moved for a writ of error coram nobis vacating the order of this Court entered October 10, 2008 affirming a judgment of Supreme Court, Monroe County, rendered October 18, 2005,

Now, upon reading and filing the affirmation of Brian Shiffrin, dated September 17, 2009, the notice of motion with proof of service thereof, the opposing affirmation of Geoffrey Kaeuper, dated October 13, 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 issues on direct appeal that would have resulted in reversal, specifically, in failing to argue that the warrantless search of defendant's residence and property was unlawful and that trial counsel was ineffective in failing to seek a remedy for an alleged Rosario violation. Upon our review of the trial court proceedings, we conclude that the issues may have merit. Therefore, the order of October 10, 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 March 1, 2010.

Entered: December 30, 2009

Patricia L. Morgan, Clerk