Opinion
2014-11-21
The PEOPLE of the State of New York, Respondent, v. Shawn M. HALLMARK, Defendant–Appellant. (Appeal No. 1.).
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.
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.
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS AND VALENTINO, JJ.
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, 682 N.Y.S.2d 671, 705 N.E.2d 663, rearg. denied93 N.Y.2d 849, 688 N.Y.S.2d 495, 710 N.E.2d 1094; see People v. Concepcion, 17 N.Y.3d 192, 197–198, 929 N.Y.S.2d 541, 953 N.E.2d 779), 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 A.D.3d 1557, 1558, 932 N.Y.S.2d 750).
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.