| People v White |
| 2015 NY Slip Op 09471 [134 AD3d 1414] |
| December 23, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Elizabeth A. White, Appellant. |
Easton Thompson Kasperek Shiffrin LLP, Rochester (Donald M. Thompson ofcounsel), for defendant-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 January 27, 2014. The judgment convicted defendant, upon a nonjury verdict,of driving while intoxicated, a class D felony (two counts), and aggravated unlicensedoperation of a motor vehicle in the first degree.
It is hereby ordered that the case is held, the decision is reserved and the matter isremitted to Chautauqua County Court for a determination of the motion following furtherproceedings if necessary.
Memorandum: Defendant appeals from a judgment convicting her, following anonjury trial, of two counts of driving while intoxicated as class D felonies (Vehicle andTraffic Law §§ 1192 [2], [3]; 1193 [1] [c] [ii]) and aggravatedunlicensed operation of a motor vehicle in the first degree (§ 511 [3] [a][i]). At the close of the People's case, defense counsel moved for a trial order of dismissalon the ground that the arresting officers, who were employed by the Town of Ellicott(Town), exceeded their jurisdictional authority when they arrested defendant in the Cityof Jamestown (City). Defendant also requested that County Court take judicial notice ofthe location of the arrest and the boundaries of the City and Town. The proof had notclosed at that point, and the court reserved decision on the motion to allow the parties tomake written submissions. The court never ruled on the motion, but issued a writtenverdict finding defendant guilty of the charges and noting that it had reviewed the parties'submissions.
Defendant contends that the court erred in refusing to take judicial notice of therelevant geographical facts and in denying her motion to dismiss the charges. We do notaddress that contention because, in accordance with People v Concepcion (17 NY3d 192, 197-198 [2011]) andPeople v LaFontaine (92 NY2d 470, 474 [1998], rearg denied 93 NY2d849 [1999]), "we cannot deem the court's failure to rule on the . . . motionas a denial thereof" (People vSpratley, 96 AD3d 1420, 1421 [2012]). We therefore hold the case, reservedecision, and remit the matter to County Court for a ruling on the motion following suchfurther proceedings as may be necessary. Present—Scudder, P.J., Centra, Lindley,Valentino and Whalen, JJ.