| People v Chattley |
| 2011 NY Slip Op 08438 [89 AD3d 1557] |
| November 18, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Blair Chattley,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.), renderedAugust 27, 2009. The judgment convicted defendant, upon his plea of guilty, of criminal possession ofstolen property in the fourth degree and reckless endangerment in the first degree.
It is hereby ordered that the case is held, the decision is reserved and the matter is remitted toSupreme Court, Erie County, for further proceedings.
Memorandum: On appeal from a judgment convicting him, upon his plea of guilty, of criminalpossession of stolen property in the fourth degree (Penal Law § 165.45 [5]) and recklessendangerment in the first degree (§ 120.25), defendant contends that Supreme Court erred infailing to grant his pro se motion to withdraw his plea. There is no indication in the record, however,that the court ruled on the motion; i.e., the court neither granted nor denied it on the record before us.The Court of Appeals "has construed CPL 470.15 (1) as a legislative restriction on the AppellateDivision's power to review issues either decided in an appellant's favor, or not ruled upon, bythe trial court" (People v LaFontaine, 92 NY2d 470, 474 [1998], rearg denied 93NY2d 849 [1999] [emphasis added]; seePeople v Concepcion, 17 NY3d 192, 197-198 [2011]), and thus the court's failure to rule onthe motion cannot be deemed a denial thereof. We therefore hold the case, reserve decision and remitthe matter to Supreme Court for a ruling on defendant's pro se motion. Present—Centra, J.P.,Fahey, Lindley and Martoche, JJ.