People v. Walton , 836 N.Y.S.2d 442 ( 2007 )

— Motion for writ of error coram nobis to vacate two decisions and orders of this Court in People v Walton (16 AD3d 903 [2005], lv denied 5 NY3d 796 [2005]) and People v Walton (13 AD3d 729 [2004], lv denied 4 NY3d 804 [2005]).

Defendant contends on this motion that he was denied the effective assistance of appellate counsel upon the appeals from two judgments of conviction (16 AD3d 903 [2005], lv denied 5 NY3d 796 [2005]; 13 AD3d 729 [2004], lv denied 4 NY3d 804 [2005]; see People v Bachert, 69 NY2d 593 [1987]). Initially, defendant has failed to show that he was denied the effective assistance of appellate counsel upon the appeal from his judgment of conviction rendered December 14, 2001. However, as relating to his judgment of conviction rendered June 29, 2001, defendant asserts, among other things, that County Court erred in denying his challenge for cause to a prospective juror (see People v Johnson, 94 NY2d 600, 614-616 [2000]; People v Faulkner, 36 AD3d 1071, 1072-1073 [2007]). We agree that the issue may-have merit and should have been raised by appellate counsel (see People v Smith, 21 AD3d 599 [2005]; People v Gutkaiss, 280 AD2d 875 [2001]; People v Hacker, 162 AD2d 815 [1990]). Accordingly, the instant motion for coram nobis relief should be granted in part, the order of this Court dated and entered December 9, 2004 affirming the judgment of conviction vacated, and defendant’s appeal reinstated. Upon the reinstated appeal, defendant may raise only the issue of whether County Court erred in denying his challenge for cause to a prospective juror.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is ordered that the motion for a writ of error coram nobis is granted insofar as the order dated and entered December 9, 2004 is vacated, and the appeal from the judgment of the County Court of Albany County, rendered June 29, 2001, is reinstated, and it is further ordered that the motion for a writ of error coram nobis is otherwise denied.

Spain, J.P., Carpinello, Mugglin, Rose and Kane, JJ., concur.