THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. APPEAL NO

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Supreme Court, Appellate Division, Fourth Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. SHAWN M. HALLMARK, DEFENDANT–APPELLANT. (APPEAL NO. 1.)

KA 12–02087

Decided: November 21, 2014

PRESENT:  CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ. R. THOMAS RANKIN, PUBLIC DEFENDER, MAYVILLE (LYLE T. HAJDU OF COUNSEL), FOR DEFENDANT–APPELLANT. DAVID W. FOLEY, DISTRICT ATTORNEY, MAYVILLE (PATRICK E. SWANSON OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Chautauqua County Court for further proceedings in accordance with the following Memorandum:  In appeal No. 1, defendant appeals from a judgment convicting him upon his plea of guilty of criminal possession of a forged instrument in the second degree (Penal Law § 170.25) and, in appeal No. 2, he appeals from a judgment convicting him upon his plea of guilty of attempted criminal sale of a controlled substance in the fifth degree (§§ 110.00, 220.31).   Defendant contends in each appeal that County Court erred in denying his pro se motion to withdraw his plea.   However, there is no indication in the record that the court ruled on the motion.   The Court of Appeals “has construed CPL 470.15(1) as a legislative restriction on the Appellate Division's power to review issues either decided in an appellant's favor, or not ruled upon, by the trial court” (People v. LaFontaine, 92 N.Y.2d 470, 474, rearg. denied 93 N.Y.2d 849;  see People v. Concepcion, 17 NY3d 192, 197–198), and thus the court's failure to rule on the motion cannot be deemed a denial thereof.   We therefore hold the case, reserve decision and remit the matter to County Court for a ruling on defendant's pro se motion (see People v. Chattley, 89 AD3d 1557, 1558).

Frances E. Cafarell

Clerk of the Court