— Appeal, by permission of a Justice of the Appellate Division of the Supreme Court in the Fourth Judicial Department, from an order of the Supreme Court, Erie County (M. William Boiler, A.J.), dated January 24, 2011. The order denied the motion of defendant to vacate a judgment of conviction.
It is hereby ordered that the case is held, the decision is reserved and the matter is remitted to Supreme Court, Erie County, for a determination of that part of defendant’s motion pursuant to CPL 440.10 (1) (c).
Same memorandum as in People v Vernon ([appeal No. 1] 136 AD3d 1276 [2016]).
Present — Smith, J.P., Peradotto, Lindley, DeJoseph and Scudder, JJ.