PRESENT: SCUDDER, P.J., SMITH, CENTRA, AND LINDLEY, JJ.

KA 10-00813
Indictment No: 08C-157

MOTION NO: 4/12 THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V MARK J. DAVIS, DEFENDANT-APPELLANT.

Appellant having moved for reargument and reconsideration of the order of this Court entered January 31, 2012, or, in the alternative, a writ of error coram nobis vacating the order of this Court entered January 31, 2012 affirming a judgment of Oswego County Court rendered May 18, 2009,

Now, upon reading and filing the affidavit of John A. Cirando, Esq. sworn to February 28, 2012, the notice of motion with proof of service thereof, and due deliberation having been had thereon,

It is hereby ORDERED that the motion insofar as it seeks reargument and reconsideration relief is denied, and

It is further ORDERED that the motion insofar as it seeks coram nobis relief 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 the court erred when it failed to comply with CPL 310.30 in regard to Court Exhibit #4. Upon our review of the trial court

proceedings, we conclude that the issue may have merit. Therefore, the order of January 31, 2012 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 September 6, 2012.

Entered: June 8, 2012

Frances E. Cafarell, Clerk