People v Antoniou

2008 NY Slip Op 05299

Decided on June 6, 2008

Appellate Division, Third Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: June 6, 2008



100062

Appellant.

Motion for writ of error coram nobis to vacate decision of this Court in People v Antoniou (40 AD3d 1206 [2007]).

Defendant contends on this motion that he was denied the effective assistance of appellate counsel on the appeal from his judgment of conviction (40 AD3d 1206 [2007]; see People v Bachert, 69 NY2d 593 [1987]). More specifically, defendant asserts that his prosecution by superior court information for the crime of criminal possession of a controlled substance in the second degree, a class A-II felony, was jurisdictionally defective pursuant to CPL 195.10 (1) (b) and, therefore, his waiver of indictment and his plea of guilty on said charge were unauthorized and invalid, and his conviction must be vacated (see CPL 195.10 [1] [b]; People v Trueluck, 88 NY2d 546, 549-550 [1996]; People v Marrow, 301 AD2d 673, 674 n 1 [2003]; People v Young, 241 AD2d 690, 692 [1997]). We agree that this issue may have merit and should have been raised by appellate counsel (see People v Turner, 5 NY3d 476, 484-485 [2005]; People v Smith, 21 AD3d 599 [2005]). Accordingly, the instant motion for coram nobis relief should be granted, the order of this Court dated and entered May 10, 2007 affirming the judgment of conviction vacated, and defendant's appeal reinstated. Upon the reinstated appeal, defendant may raise only the issue of whether his prosecution by superior court information on the charge of criminal possession of a controlled substance in the second degree, and his plea of guilty thereto, were permissible under the NY Constitution and CPL article 195.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the motion is granted, the order of this Court decided and entered May 10, 2007 is vacated, and the appeal from the judgment of the County Court of Sullivan County, rendered June 22, 2005, is reinstated.

Spain, J.P, Rose, Lahtinen and Kane, JJ., concur.