PEOPLE v. GREEN (2006)

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 A.D.2d 488, 719 N.Y.S.2d 894), 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.