Opinion
2014-11-21
The PEOPLE of the State of New York, Respondent, v. Joshua L. MACK, Defendant–Appellant.
Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu of Counsel), for Defendant–Appellant. David W. Foley, District Attorney, Mayville (Andrew M. Molitor of Counsel), for Respondent.
Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu of Counsel), for Defendant–Appellant. David W. Foley, District Attorney, Mayville (Andrew M. Molitor of Counsel), for Respondent.
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, and VALENTINO, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his guilty plea of two counts of criminal possession of a controlled substance in the fourth degree (Penal Law § 220.09[1] ). Contrary to defendant's contention, the sentence is not unduly harsh or severe. We agree with defendant, however, that County Court failed to rule on his oral motion to withdraw his guilty plea. Contrary to the People's contention, we cannot “deem the court's failure to rule on the ... motion as a denial thereof” (People v. Spratley, 96 A.D.3d 1420, 1421, 946 N.Y.S.2d 361; see People v. Concepcion, 17 N.Y.3d 192, 197–198, 929 N.Y.S.2d 541, 953 N.E.2d 779). We therefore hold the case, reserve decision and remit the matter to County Court to determine defendant's motion.
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.