PRESENT: CENTRA, J.P., CARNI, DEJOSEPH, CURRAN, AND SCUDDER, JJ.

MOTION NO. 7-08
KA 06-00538
Indictment No: 2004-316A

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V RANDY HALL, DEFENDANT-APPELLANT.

Appellant having moved for a writ of error coram nobis vacating the order of this Court entered February 1, 2008, affirming a judgment of Steuben County Court, rendered August 17, 2005,

Now, upon reading and filing the affidavit of Randy Hall sworn to July 19, 2016, the notice of motion with proof of service thereof, the affidavit of John C. Tunney, Esq. sworn to August 1, 2016, 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 issues on direct appeal, specifically, whether the court placed on the record a reasonable basis for restraining defendant before the jury and whether the court complied with CPL 310.30 in regard to Court Exhibit #11, a note from the jury during its deliberations. Upon our review of the motion papers, we conclude that these issues may have merit. Therefore, the order of February 1, 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 December 29, 2016.

Entered: September 30, 2016

Frances E. Cafarell, Clerk