
    The People of the State of New York, v Donald F. Smith, Defendant.
    [798 NYS2d 924]
   Per Curiam:

Motion for writ of error coram nobis to vacate decision and order of this Court in People v Smith (288 AD2d 629 [2001], lv denied 97 NY2d 733 [2002]).

Defendant contends on this motion that he was denied the effective assistance of appellate counsel upon the appeal from his judgment of conviction (288 AD2d 629 [2001], lv denied 97 NY2d 733 [2002]; see People v Bachert, 69 NY2d 593 [1987]). More specifically, defendant asserts that County Court failed to submit the charges of manslaughter in the second degree and vehicular manslaughter in the second degree to the jury in the alternative (see CPL 300.40 [5]; People v Spurling, 199 AD2d 624 [1993]), that trial counsel failed to object to the jury instruction and that appellate counsel failed to raise this issue upon the appeal. We agree that the issue may have merit and should have been raised by appellate counsel (see People v Hacker, 162 AD2d 815 [1990]). Accordingly, the instant motion for coram nobis relief is granted, the order of this Court dated and entered November 15, 2001 affirming the judgment of conviction is vacated, and defendant’s appeal is reinstated. Upon the reinstated appeal, defendant may raise only the issue of ineffective assistance of trial counsel with respect to the failure to object to the jury instruction pursuant to CPL 300.40 (5).

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is ordered that the motion is granted, the order dated and entered November 15, 2001 is vacated, and the appeal from the judgment of the County Court of Albany County, rendered December 21, 1999, is reinstated.

Cardona, P.J., Crew III, Mugglin, Lahtinen and Kane, JJ., concur.  