Opinion
Motion No: 108909
05-07-2020
THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JAUSHI'IR WEAVER, Appellant.
DECISION AND ORDER ON MOTION
Motion for writ of error coram nobis to vacate decision and order of this Court in People v Weaver (167 AD3d 1238 [2018], lv denied 33 NY3d 955 [2019]).
Defendant contends on this motion that he was denied the effective assistance of appellate counsel upon appeal from his judgment of conviction (167 AD3d 1238 [2018], lv denied 33 NY3d 955 [2019]; see People v Bachert, 69 NY2d 593 [1987]). More specifically, he argues that County Court's jury instruction on the depraved indifference murder charge was erroneous and that appellate counsel was ineffective for failing to raise this issue on appeal. We agree that this issue may have merit and should have been raised on the appeal (see People v Fulmore, 64 AD3d 1146, 1146 [2009]; People v Florestal, 53 AD3d 164, 165-170 [2008], lv denied 11 NY3d 788 [2009]; see generally People v Feingold, 7 NY3d 288 [2006]). Accordingly, the instant motion for coram nobis relief should be granted, so much of the order of this Court entered December 20, 2018 is vacated, and defendant's appeal from the judgment of conviction reinstated. Upon the reinstated appeal, defendant may raise only this issue.
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, so much of the order of this Court entered December 20, 2018 as affirmed the judgment of conviction is vacated, and the appeal from the judgment of the County Court of Albany County, rendered May 31, 2016, is reinstated.
Egan, J.P., Clark, Mulvey, Aarons and Pritzker, JJ., concur.
ENTER:
Robert D. Mayberger
Clerk of the Court