People v. Gutkaiss

—Motion for writ of error coram nobis and/or reargument on the ground of ineffective assistance of appellate counsel.

Defendant contends on this motion that he was denied effective assistance of appellate counsel upon the appeal from his judgment of conviction (206 AD2d 584, lv denied 84 NY2d 936; see, People v Bachert, 69 NY2d 593). More specifically, defendant asserts, inter alia, that the evidence was inadequate to support his conviction of sodomy in the first degree under count 17 of the indictment and that appellate counsel failed to argue that the testimony that was adduced pertained to an incident in a different location rather than the location set forth in count 17. Since the issue may have merit, it should have been raised by appellate counsel (see, People v Hacker, 162 AD2d 815). Accordingly, the instant motion for coram nobis relief should be granted, the order of this Court dated July 7, 1994 affirming the judgment of conviction vacated, and defendant’s appeal reinstated. Upon the reinstated appeal, defendant may raise only the issue of whether the evidence was sufficient to support the conviction under count 17 of the indictment.

Upon the papers filed in support of the motion, and the papers filed in opposition thereto, it is ordered that the motion *876for writ of error coram nobis is granted, and order dated July 7, 1994 is vacated, and the appeal from the judgment of the County Court of Washington County rendered May 21, 1993 reinstated, and it is further ordered that the motion for reargument is denied.

Cardona, P. J., Crew III, Peters, Spain and Lahtinen, JJ., concur.