PRESENT: PERADOTTO, J.P., FAHEY, GREEN, AND PINE, JJ.

MOTION NO. 686-94
KA 09-02420
Indictment No: 91-539

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V HECTOR RIVERA, DEFENDANT-APPELLANT.

Appellant having moved for a writ of error coram nobis vacating the order of this Court entered July 15, 1994, affirming a judgment of Supreme Court, Monroe County, rendered July 28, 1992,

Now, upon reading and filing the affidavit of Hector Rivera sworn to November 20, 2009, the notice of motion with proof of service thereof, the opposing affirmation of Stephen X. O'Brien dated December 18, 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 Supreme Court erred in responding to notes from the jury during its deliberations. Upon our review of the trial court proceedings, we conclude that the issue may have merit. Therefore, the order of July 15, 1994 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 May 17, 2010.

Entered: February 11, 2010

Patricia L. Morgan, Clerk