| People v Stewart |
| 2013 NY Slip Op 07605 [111 AD3d 1395] |
| November 15, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, vWilson Stewart, Appellant. |
—[*1] William J. Fitzpatrick, District Attorney, Syracuse (Maria Maldonado of counsel),for respondent.
Appeal from a judgment of the Onondaga County Court (Joseph E. Fahey, J.),rendered July 9, 2010. The judgment convicted defendant, after a nonjury trial, of assaultin the first degree, assault in the second degree and criminal possession of a weapon inthe third degree.
It is hereby ordered that the case is held, the decision is reserved and the matter isremitted to Onondaga County Court for further proceedings in accordance with thefollowing memorandum: On appeal from a judgment convicting him upon a nonjuryverdict of assault in the first degree (Penal Law § 120.10 [1]), assault in the seconddegree (§ 120.05 [2]), and criminal possession of a weapon in the third degree(§ 265.02 [1]), defendant contends, inter alia, that County Court erred in failing torule on that part of his pretrial motion seeking inspection of the grand jury minutes todetermine whether the grand jury proceedings were defective. We agree. "The recorddoes not reflect that the court ever ruled on [that part of] defendant's motion, and afailure to rule on a motion cannot be deemed a denial thereof" (People v Jones, 103 AD3d1215, 1217 [2013], lv dismissed 21 NY3d 944 [2013]; see generally People vConcepcion, 17 NY3d 192, 197-198 [2011]). We therefore hold the case,reserve decision and remit the matter to County Court to decide that part of defendant'smotion. Present—Centra, J.P., Fahey, Carni, Sconiers and Valentino, JJ.