| People v Mack |
| 2014 NY Slip Op 08205 [122 AD3d 1444] |
| November 21, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Joshua L. Mack, Appellant. |
Erickson Webb Scolton & Hajdu, Lakewood (Lyle T. Hajdu of counsel), fordefendant-appellant.
David W. Foley, District Attorney, Mayville (Andrew M. Molitor of counsel), forrespondent.
Appeal from a judgment of the Chautauqua County Court (John T. Ward, J.),rendered April 23, 2012. The judgment convicted defendant, upon his plea of guilty, ofcriminal possession of a controlled substance in the fourth degree (two counts).
It is hereby ordered that the case is held, the decision is reserved and the matter isremitted to Chautauqua County Court for further proceedings in accordance with thefollowing memorandum: Defendant appeals from a judgment convicting him upon hisguilty plea of two counts of criminal possession of a controlled substance in the fourthdegree (Penal Law § 220.09 [1]). Contrary to defendant's contention, thesentence is not unduly harsh or severe. We agree with defendant, however, that CountyCourt failed to rule on his oral motion to withdraw his guilty plea. Contrary to thePeople's contention, we cannot "deem the court's failure to rule on the . . .motion as a denial thereof" (People v Spratley, 96 AD3d 1420, 1421 [2012]; see People v Concepcion, 17NY3d 192, 197-198 [2011]). We therefore hold the case, reserve decision and remitthe matter to County Court to determine defendant's motion. Present—Centra, J.P.,Fahey, Carni, Sconiers and Valentino, JJ.