People v. Bowen

—Writ of error co-ram nobis granted and the judgment of Supreme Court, Bronx County (Fred Eggert, J.), rendered April 29,1982, unanimously reversed, on the law and the facts, and the matter remanded for a new trial.

Defendant and co-defendant Timothy Rutter were tried together and both convicted of murder in the second degree. Defendant’s conviction was affirmed by this Court without opinion on February 28, 1985 (108 AD2d 1104) and leave to appeal to the Court of Appeals was denied on May 29, 1985 (65 NY2d 692). The appellate brief filed on behalf of the defendant failed to raise appellate issues identified by this Court as warranting reversal and remand for a new trial in its determination granting an application for a writ of error coram nobis made by defendant’s co-defendant (People v Rutter, 202 AD2d 123, lv dismissed 85 NY2d 866). The issues concerned Rosario and Brady violations and the improper and highly prejudicial admission into evidence of a fragment of blood stained carpet without proper proof of an unbroken chain of custody and no other reasonable assurances that the carpet fragment accurately portrayed a relevant material element of the case *162(supra). While the appellate brief in question raised and competently argued other claims, rejected by this Court on the direct appeal, the instant application is controlled by the determination in People v Rutter (supra; see, People v Simmons, 90 AD2d 731).

Motion for a writ of error coram nobis granted and the decision and order of this Court entered herein on February 28, 1985 (108 AD2d 1104, supra) is hereby recalled and vacated. Concur—Sullivan, J. P., Milonas, Ross, Mazzarelli and Andrias, JJ.