Opinion
06-17-2016
The PEOPLE of the State of New York, Respondent, v. Earl F. SPRAGUE, III, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas P. Difonzo of Counsel), for Defendant–Appellant. Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for Respondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.), rendered January 22, 2014. The judgment convicted defendant, upon a jury verdict of sexual abuse in the first degree (28 counts).
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas P. Difonzo of Counsel), for Defendant–Appellant.
Lawrence Friedman, District Attorney, Batavia (William G. Zickl of Counsel), for Respondent.
MEMORANDUM: On appeal from a judgment convicting him of 28 counts of sexual abuse in the first degree (Penal Law § 130.65[3] ), defendant contends, inter alia, that County Court erred in failing to grant his motion for a trial order of dismissal. In accordance with People v. Concepcion, 17 N.Y.3d 192, 197–198, 929 N.Y.S.2d 541, 953 N.E.2d 779 and People v. LaFontaine, 92 N.Y.2d 470, 474, 682 N.Y.S.2d 671, 705 N.E.2d 663, rearg. denied 93 N.Y.2d 849, 688 N.Y.S.2d 495, 710 N.E.2d 1094, we do not address that contention inasmuch as “ ‘we cannot deem the court's failure to rule on the ... motion as a denial thereof’ ” (People v. White, 134 A.D.3d 1414, 1415, 22 N.Y.S.3d 723 ). We therefore hold the case, reserve decision, and remit the matter to County Court for a ruling on the motion.
It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Genesee County Court for further proceedings.
WHALEN, P.J., CARNI, NEMOYER, TROUTMAN, and SCUDDER, JJ., concur.