Opinion
100 KA 20-00073
07-16-2021
The PEOPLE of the State of New York, Respondent, v. Richard BAEK, Defendant-Appellant.
EMILY E. STOUFER-QUINN, NUNDA, FOR DEFENDANT-APPELLANT.
EMILY E. STOUFER-QUINN, NUNDA, FOR DEFENDANT-APPELLANT.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Allegany County Court for further proceedings in accordance with the following memorandum: On appeal from a judgment convicting him following a jury trial of rape in the third degree ( Penal Law § 130.25 [3] ), defendant contends, inter alia, that the indictment, as amplified by the bill of particulars, is facially duplicitous and, further, that the indictment was rendered duplicitous by the testimony at trial. Inasmuch as defendant did not object to the trial testimony in question that rendered the indictment duplicitous, his latter contention is not preserved for our review (see People v. Allen , 24 N.Y.3d 441, 448-449, 999 N.Y.S.2d 350, 24 N.E.3d 586 [2014] ). Although defendant did preserve his contention concerning facial duplicity by seeking dismissal of the indictment on that ground in the pretrial omnibus motion (see People v. Kalabakas , 183 A.D.3d 1133, 1135, 124 N.Y.S.3d 448 [3d Dept. 2020], lv denied 35 N.Y.3d 1067, 129 N.Y.S.3d 407, 152 N.E.3d 1209 [2020] ; cf. People v. Box , 145 A.D.3d 1510, 1512-1513, 44 N.Y.S.3d 645 [4th Dept. 2016], lv denied 29 N.Y.3d 1076, 64 N.Y.S.3d 166, 86 N.E.3d 253 [2017] ), we are unable to address that contention because County Court failed to rule on that part of defendant's omnibus motion (see CPL 470.15 [1] ; People v. Concepcion , 17 N.Y.3d 192, 197-198, 929 N.Y.S.2d 541, 953 N.E.2d 779 [2011] ).
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, 682 N.Y.S.2d 671, 705 N.E.2d 663 [1998], rearg denied 93 N.Y.2d 849, 688 N.Y.S.2d 495, 710 N.E.2d 1094 [1999] [emphasis added]; see People v. Watkins , 179 A.D.3d 1467, 1468, 118 N.Y.S.3d 827 [4th Dept. 2020] ), "and thus the court's failure to rule on the motion cannot be deemed a denial thereof" ( Watkins , 179 A.D.3d at 1468, 118 N.Y.S.3d 827 ; see People v. Bennett , 180 A.D.3d 1357, 1358, 115 N.Y.S.3d 737 [4th Dept. 2020] ). We therefore hold the case, reserve decision and remit the matter to County Court for a ruling on that part of defendant's omnibus motion.
Defendant's contention that his conviction is not supported by legally sufficient evidence is not preserved for our review (see People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ; see also People v. Hines , 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329 [2001], rearg denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396 [2001] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ). We have reviewed defendant's remaining contentions and conclude that none warrants modification or reversal of the judgment.