| THE PEOPLE V GERMAINE BROWN (APPEAL NO. 2.) |
| Motion No: 732-08 |
| Slip Opinion No: 2013 NY Slip Op 75212(U) |
| Decided on April 26, 2013 |
| Appellate Division, Fourth Department, Motion Decision |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This motion is uncorrected and is not subject to publication in the Official Reports. |
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.
MOTION NO. 732-08
KA 07-01017
Indictment No: 2006-017
| THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V GERMAINE BROWN, DEFENDANT-APPELLANT. (APPEAL NO. 2.) |
Appellant counsel having moved for a writ of error coram nobis vacating the order of this Court entered June 6, 2008 modifying a judgment of Niagara County Court, rendered March 2, 2007,
Now, upon reading and filing the affirmation of Jeremy D. Schwartz, Esq. dated January 7, 2013, the 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, County Court's deference to the decision of defendant to forgo a jury charge for lesser included offenses denied him the expert judgment of counsel, to which the Sixth Amendment entitles him. Upon our review of the motion papers, we conclude that the issue may have merit. Therefore, the order of June 6, 2008 is vacated and this Court will consider the appeal de novo (see People v. LeFrois, 151 AD2d 1046). Defendant is directed to file and serve his records and briefs with this Court on or before July 25, 2013.
Entered: April 26, 2013
Frances E. Cafarell, Clerk