| People v Matthews |
| 2017 NY Slip Op 01407 [147 AD3d 1206] |
| February 23, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, v TyshenMatthews, Also Known as Tysheen Moore, Also Known as Nitty,Appellant. |
Thomas F. Garner, Middleburgh, for appellant.
Kathleen B. Hogan, District Attorney, Lake George (Emilee B. Davenport of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Washington County (McKeighan,J.), rendered January 3, 2014, upon a verdict convicting defendant of the crimes of robbery in thefirst degree, robbery in the second degree, burglary in the second degree, petit larceny andendangering the welfare of a child.
In June 2013, defendant was charged with robbery in the first degree, robbery in the seconddegree, burglary in the second degree, petit larceny, conspiracy in the fourth degree andendangering the welfare of a child. County Court dismissed the charge of conspiracy in the fourthdegree as jurisdictionally defective and, following a jury trial, defendant was convicted of theremaining charges. Defendant was thereafter sentenced to an aggregate prison term of 20 years,followed by five years of postrelease supervision. He now appeals.
Defendant argues that County Court failed to rule on that aspect of his omnibus motionseeking inspection of the grand jury minutes and dismissal of the indictment. As the Peopleconcede, the record is devoid of a ruling upon the motion to inspect, as is required by CPL210.30 (5). Accordingly, we remit the matter to County Court for a ruling on the record withrespect to this aspect of defendant's omnibus motion (see People v Blair, 121 AD3d 1570, 1571-1572 [2014]; People v Stewart, 111 AD3d 1395,1396 [2013]; People v Jones, 103AD3d 1215, 1217 [2013], lv dismissed 21 NY3d 944 [2013]).
[*2] There is also no indication in the record that County Courtruled on defendant's motion challenging the existence of probable cause to justify his warrantlessarrest. Although defendant did not raise this issue in his omnibus motion or prior to theconclusion of proof in the Wade/Huntley hearing, he did raise it in what appears to bedefense counsel's written summation after the Wade/Huntley hearing. The Peopleopposed defendant's challenge to his warrantless arrest in their written summation, but CountyCourt did not resolve the issue in its decision following the Wade/Huntley hearing, andthere is no indication in the record that the court ruled on it at a later time. Defendant directedCounty Court's attention to the absence of a ruling on his motion at a November 2013 pretrialconference and again at the start of trial, to which County Court mistakenly stated that the issuehad been resolved in its decision on the Wade/Huntley hearing. Inasmuch as the recorddoes not reflect that County Court ruled on defendant's motion challenging his warrantless arrest,despite defendant's repeated attempts to alert County Court to the absent ruling (compare People v Bigelow, 68 AD3d1127, 1128 [2009], lv denied 14 NY3d 797 [2010]; People v Harley, 253AD2d 699, 699 [1998], lv denied 92 NY2d 1032 [1998]), the matter must also beremitted to County Court for it to set forth on the record or in a written decision its determinationon such motion (see CPL 710.60 [6]; People v Mabeus, 47 AD3d 1073, 1074 [2008]; People vBrown, 263 AD2d 613, 614 [1999], lv denied 94 NY2d 877 [2000]). Pending CountyCourt's determinations upon remittal, we withhold decision on the remaining issues raised bydefendant.
McCarthy, J.P., Egan Jr., Clark and Mulvey, JJ., concur. Ordered that the decision iswithheld, and matter remitted to the County Court of Washington County for further proceedingsnot inconsistent with this Court's decision.