(concurring in part and dissenting in part). I concur with so much of the majority opinion as (1) denied the defendant’s motion insofar as it seeks reargument of our order affirming his conviction and (2) grants defendant’s motion insofar as it seeks leave to appeal from the order of the Supreme Court, Kings County (Moskowitz, J.), dated June 13, 1984, which denied his application to vacate his conviction pursuant to CPL article 440.
The majority however, upon granting defendant leave to appeal from the June 13, 1984 order, holds that the order must be reversed and the matter remitted to Criminal Term for a determination on the merits of defendant’s article 440 motion.
It is from this latter holding that I respectfully dissent. The order of the Supreme Court, Kings County, dated June 13,1984 should, in my view, be affirmed.
*214I
Both branches of defendant’s motion, i.e., to reargue, and for leave to appeal from the order of Criminal Term, are based on the same ground. Specifically, defendant argues that he was deprived of his constitutional right to effective assistance of appellate counsel (Evitts v Lucey, 469 US_, 105 S Ct 830), by virtue of appellate counsel’s failure to raise an issue concerning the trial court’s alleged refusal to answer a question posed by the jury, although the alleged error was not objected to by trial counsel.
The majority is of the view that the motion, insofar as it seeks reargument is an inappropriate vehicle to assert the particular ground raised by the defendant, and should be denied, on that basis, in view of the fact that (1) reargument is limited to points overlooked or misapprehended by the court and cannot be used to raise new questions not previously advanced, (2) a motion to reargue must normally be made within 30 days, and (3) an evidentiary hearing may be necessary to ascertain why a certain issue was not pursued by appellate counsel. In view of these arguments, and citations to numerous cases, the majority holds that defendant’s present contention, i.e., ineffective assistance of appellate counsel, must be made in the trial court, by way of a motion to vacate the judgment of conviction pursuant to CPL article 440. The majority is further of the view that if defendant prevails in Ms 440 motion then Criminal Term must vacate his judgment of conviction, and resentence the defendant to allow a new appeal to be taken. Since Criminal Term in the instant case did not rule on the merits of defendant’s CPL article 440 motion which alleged ineffective assistance of appellate counsel, but rather denied same on the ground that Criminal Term was an “improper forum for the review of the effectiveness of Appellate Counsel”, the majority votes to reverse the order of Criminal Term and remit the matter to that court for a determination on the merits of the motion.
I find neither the arguments nor the precedents advanced by the majority, to be persuasive.
I turn first to the applicable case law.
II
In People ex rel. Douglas v Vincent (50 NY2d 901, 903), a majority of our Court of Appeals addressed the particular issue involved at bar and specifically stated: “Thus we express no view as to whether the contention that relator was deprived of effective assistance of counsel on appeal may be heard in a proceeding in the nature of coram nobis.”
*215Faced with this legal vacuum, I am of the view that the decision of the United States Court of Appeals for the Second Circuit in United States ex rel. Johnson v Vincent (507 F2d 1309), is most persuasive on the issue before us. It appears that Johnson had made a motion in Bronx County Supreme Court pursuant to CPL 440.10 to vacate his judgment of conviction based, inter alia, on the ground of ineffective assistance of appellate counsel, i.e., the failure of appellate counsel to raise on appeal the issue of the trial court’s refusal to instruct the jury on lesser included offenses. Justice Arnold Fein of the Supreme Court, Bronx County (now the Appellate Division, First Department), denied the motion, holding that the claim of inadequate representation of appellate counsel was not properly before him on a motion to vacate a judgment of conviction. In the course of its opinion denying habeas corpus relief due to Johnson’s failure to exhaust available State remedies, the Court of Appeals for the Second Circuit specifically approved of Justice Fein’s decision, by stating (United States ex rel. Johnson v Vincent, supra, at p 1312):
“The only point in the state proceedings where Johnson raised the claim of ineffective assistance of counsel was in his second motion to vacate the judgment of conviction, pursuant to N.Y. Crim. Proc. Law § 440.10 (McKinney 1971). This provision, however, permits collateral attack on a conviction only on the basis of errors committed at trial, as reflected in Justice Fein’s decision denying Johnson’s motion:
“Tf appellate counsel’s alleged oversight is intended as a claim of inadequate representation, such conduct occurred at the appellate level and not during the course of the proceedings in the nisi prius court. It does not appear that the trial court erred.’ ”
Indeed, the decision of the Court of Appeals for the Second Circuit in Johnson (supra) clearly reflects practical reality. More often than not, motions alleging ineffective assistance of appellate counsel will focus on counsel’s failure to raise on appeal, errors unpreserved for appellate review. In this situation, it is the appellate court that is best suited to judge a claim of ineffective assistance of appellate counsel. Persuasive precedent and common sense therefore demonstrate that the procedure suggested by the majority to litigate the claim of ineffective assistance of appellate counsel, i.e., a CPL article 440 motion in the trial court, is not the preferable one.
I am cognizant that a decision of the Supreme Court of Pennsylvania (Commonwealth v Sullivan, 472 Pa 129, 371 A2d *216468), appears to be in conflict with that of United States ex rel. Johnson (supra). However, the holding of Commonwealth v Sullivan is clearly limited to the particular Pennsylvania statute governing postjudgment relief, and in my view, is not entitled to the same deference as the decision of the Second Circuit Court of Appeals in United States ex rel. Johnson (supra) which has interpreted the scope of CPL 440.10.
All of the remaining cases cited by the majority, including those from this jurisdiction, are distinguishable from the facts at bar since they deal with situations which have long been considered by many courts to be properly within the scope of a coram nobis application, i.e., the inexcusable failure of counsel to timely file or perfect an appeal with resulting prejudice to defendant. Indeed, even in this latter situation, there is authority for the proposition that any application for relief must be made in the appellate court (see, United States v Winterhalder, 724 F2d 109; Williams v United States, 307 F2d 366).
Ill
The procedural arguments, relied on by the majority, are similarly unpersuasive.
I agree with the majority that defendant’s motion, technically speaking, was mislabeled as a motion for reargument. However, any defect in this regard can be cured by converting the motion into one to either “recall” or vacate our order. The motion to “recall” or vacate the appellate court’s determination is a procedure utilized in the Federal courts (see, Williams v United States, supra, at p 368; United States v Winterhalder, supra, at p 111), and it has been cited by the Supreme Court of the United States in Evitts v Lucey (supra, p_, n 10, p 838, n 10) as one of several possible solutions to the particular problem at bar.
Finally, the need, in some instances for an evidentiary hearing does not by itself mandate the majority’s conclusion that the claim of ineffective assistance of appellate counsel must be brought before the trial court for ultimate determination. Any problem in this regard can be readily solved by referring the matter to Criminal Term to hear and report, which is a procedure often utilized by this court when it holds appeals in abeyance. In this procedure, the ultimate determination remains, as it should, with this court, and not with Criminal Term. As Justice Pomeroy stated in his dissent in Commonwealth v Sullivan (supra, pp 184-185, n 14, p 494, n 14): “If factual determinations are involved relative to matters not of record nor within *217the direct knowledge of the appellate court, that may be accomplished in a proper case by reference to a master or to a trial court to perform a master’s function.”
It is for these reasons that I dissent in part and vote to affirm the order of the Supreme Court, Kings County, dated June 13, 1984.
IV
With respect to defendant’s motion to reargue, I would simply (1) convert it to a motion to “recall” or vacate our order affirming his conviction and (2) deny it on the merits (Jones v Barnes, 463 US 745,103 S Ct 3308; United States ex rel. Roche v Scully, 739 F2d 739, 744; Cunningham v Henderson, 725 F2d 32, 36-37).
Mollen, P. J., and Lazer, J., concur with Titone, J.; Mangano, J., concurs in part and dissents in part, with an opinion.
Motion, insofar as it is for reargument, denied.
Motion, insofar as it seeks leave to appeal from the order dated June 13,1984, granted by Justice Titone, and order of the Supreme Court, Kings County, dated June 13,1984 reversed, as a matter of discretion in the interest of justice, and matter remitted to the Supreme Court, Kings County, for further proceedings, in accordance with the opinion herewith.