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

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.