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

MOTION NO. 804-07
KA 04-02820
Indictment No: 2004-116

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V KELVIN ROBINSON, DEFENDANT-APPELLANT.

Appellant having moved for a writ of error coram nobis vacating the order of this Court entered June 8, 2007 affirming a judgment of Niagara County Court, rendered November 3, 2004,

Now, upon reading and filing the affirmation of Brian Shiffrin, Esq. dated June 26, 2012, the statement of Kelvin Robinson dated May 17, 2012, the amended notice of motion with proof of service thereof, and due deliberation having been had thereon,

It is hereby ORDERED that the motion 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 defendant's guilty plea was involuntary and unknowing because the plea colloquy negated the elements of the crime. Upon our review of the trial court proceedings, we conclude that the issue may have merit. Therefore, the order of June 8, 2007 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 December 28, 2012.

Entered: September 28, 2012

Frances E. Cafarell, Clerk