THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. WILSON STEWART DEFENDANT APPELLANT (2013)

MEMORANDUM AND ORDER

It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Onondaga County Court for further proceedings in accordance with the following Memorandum:  On appeal from a judgment convicting him upon a nonjury verdict of assault in the first degree (Penal Law § 120.10[1] ), assault in the second degree (§ 120.05[2] ), and criminal possession of a weapon in the third degree (§ 265.02[1] ), defendant contends, inter alia, that County Court erred in failing to rule on that part of his pretrial motion seeking inspection of the grand jury minutes to determine whether the grand jury proceedings were defective.   We agree.  “The record does not reflect that the court ever ruled on [that part of] defendant's motion, and a failure to rule on a motion cannot be deemed a denial thereof” (People v. Jones, 103 AD3d 1215, 1217, lv dismissed 21 NY3d 944;  see generally People v. Concepcion, 17 NY3d 192, 197–198).   We therefore hold the case, reserve decision and remit the matter to County Court to decide that part of defendant's motion.

Frances E. Cafarell

Clerk of the Court