| People v Ott |
| 2011 NY Slip Op 03358 [83 AD3d 1495] |
| April 29, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Anthony N.Ott, Appellant. |
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Appeal from a judgment of the Monroe County Court (Stephen R. Sirkin, J.), rendered April5, 2006. The judgment convicted defendant, upon a jury verdict, of murder in the second degreeand assault in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby vacating the sentence imposed for murder in the second degree under count one of theindictment and as modified the judgment is affirmed, and the matter is remitted to MonroeCounty Court for resentencing on that count of the indictment.
Memorandum: On appeal from a judgment convicting him after a jury trial of murder in thesecond degree (Penal Law § 125.25 [1]) and assault in the first degree (§ 120.10[1]), defendant contends that his case was improperly transferred between Supreme Court,Monroe County and Monroe County Court for hearing and trial purposes because there are notransfer orders in the record (see 22 NYCRR 200.14). Defendant failed to preserve thatcontention for our review (see CPL 470.05 [2]), and we decline to exercise our power toreview it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).Insofar as defendant contends that the matter was in fact pending in Supreme Court and that theActing County Court Judge who presided over the suppression hearing lacked subject matterjurisdiction to do so, we conclude that defendant waived that contention. Although a contentionthat a judge lacks subject matter jurisdiction to preside over a matter may be raised for the firsttime on appeal (see People vCorrea, 15 NY3d 213 [2010]), "[g]iven that Supreme Court [and County Court] had thepower to hear the case, the transfer error defendant alleges is the equivalent of an improper venueclaim, which is not jurisdictional in nature and is waived if not timely raised . . .Because defendant did not object in the trial court to the (purported) transfer of [his] case to[County] Court, we may not consider this . . . claim" (People v Wilson, 14 NY3d 895,897 [2010]). Contrary to defendant's contention, People v Adams (74 AD3d 1897 [2010]) does not require adifferent result. There, the matter was transferred to a different judge in violation of, inter alia,the requirement set forth in 22 NYCRR 200.14 that the transfer must occur before the entry ofthe plea (see Adams at 1899). Here, there was no postplea transfer, and thus "the'essential nature' of the right to be sentenced as provided by law" was not implicated (Peoplev Fuller, 57 NY2d 152, 156 [1982]).[*2]
Because defendant on appeal raises a different ground forseverance than that set forth in his pretrial motion for that relief, defendant failed to preserve forour review his present contention in support of severance (see People v Hall, 48 AD3d 1032 [2008], lv denied 11NY3d 789 [2008]; People v Wooden, 296 AD2d 865 [2002], lv denied 99 NY2d541 [2002]; People v Reed, 236 AD2d 866 [1997], lv denied 89 NY2d 1099[1997]). In any event, the record does not support defendant's present contention that thesummation of his codefendant's attorney was inconsistent with his own defense and thus that "thecore of each defense [was] in irreconcilable conflict with the other and [that] there [was] asignificant danger, as both defenses [were] portrayed to the trial court, that the conflict alonewould lead the jury to infer defendant's guilt" (People v Mahboubian, 74 NY2d 174, 184[1989]).
Contrary to the further contention of defendant, the trial judge did not violate Judiciary Law§ 21 by allegedly issuing a decision on defendant's suppression motion without hearing theevidence in support of the motion. The Acting County Court Judge who presided over theWade hearing expressly denied the codefendant's suppression motion but failed expresslyto rule on defendant's suppression motion. It is well settled, however, that a court's failure to ruleon a motion is deemed a denial thereof (see e.g. People v Mason, 305 AD2d 979 [2003],lv denied 100 NY2d 563 [2003]; People v Jackson, 291 AD2d 930 [2002], lvdenied 98 NY2d 677 [2002]; People v Virgil, 269 AD2d 850 [2000], lvdenied 95 NY2d 806 [2000]). Consequently, defendant's suppression motion is deemed tohave been denied by the Acting County Court Judge prior to the start of trial. Indeed, we notethat the trial judge merely clarified that it was denied when he stated that he deemed the e-mailfrom the Acting County Court Judge denying the codefendant's motion to be a denial ofdefendant's motion as well.
We agree with defendant, however, that the sentence imposed on count one, charging himwith murder in the second degree, must be vacated and the matter remitted for resentencing withrespect to that count, "[b]ecause of the discrepancy between the sentencing minutes and thecertificate of conviction" with respect to that count (People v Ingram, 263 AD2d 959,960 [1999]; see People v Beard [appeal No. 2], 41 AD3d 1251 [2007], lv denied9 NY3d 920 [2007]; People v Shand, 280 AD2d 943, 944 [2001], lv denied96 NY2d 834 [2001]). We therefore modify the judgment accordingly, and we remit the matter toCounty Court for resentencing on that count of the indictment. Present—Smith, J.P.,Fahey, Peradotto and Martoche, JJ.