People v. Green , 818 N.Y.S.2d 262 ( 2006 )

Motion by the appellant, in effect, for leave to reargue an application for a writ of error coram nobis, which was determined by decision and order of this Court dated May 23, 2005.

Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it is

Ordered that the motion is granted and, upon reargument, the decision and order of this Court dated May 23, 2005 (see People v Green, 18 AD3d 775 [2005]), is recalled and vacated, and the following decision and order is substituted therefor:

Application by the appellant for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, a decision and order of this Court dated February 5, 2001 (People v Green, 280 AD2d 488 [2001]), affirming a judgment of the Supreme Court, Queens County, rendered May 12, 1999.

Ordered that the application is granted and the decision and order of this Court dated February 5, 2001 is recalled and vacated; and it is further,

Ordered that the judgment is modified, on the law, by vacating the sentence imposed thereon; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Queens County, for resentencing, to be preceded by a hearing pursuant to CPL 400.15 to determine whether the appellant is a second violent felony offender.

The appellant’s present argument that he was not properly adjudicated a second violent felony offender was not adequately presented and supported on appeal from the judgment of conviction. In light of the existence of apparently conflicting documentation concerning the appellant’s 1989 conviction, the Supreme Court must determine whether the offense of which the appellant was convicted in 1989 was a violent felony offense and must resentence the appellant accordingly. Prudenti, P.J., Florio, Santucci and Goldstein, JJ., concur.