People v. Stewart

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 assault in the first degree, assault in the second degree and criminal possession of a weapon in the third degree.
Frank H. Hiscock Legal Aid Society, Syracuse (Piotr Banasiak of Counsel), for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Maria Maldonado of Counsel), for Respondent.
MEMORANDUM:

On appeal from a judgment convicting him upon a nonjury verdict of assault in the first degree (Penal Law § 120.10[1] ), assault in the second degree (§ 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 to rule on that part of his pretrial motion seeking inspection of the grand jury minutes to determine whether the grand jury proceedings were defective. We agree. “The record does not reflect that the court ever ruled on [that part of] defendant's motion, and a failure to rule on a motion cannot be deemed a denial thereof” ( People v. Jones, 103 A.D.3d 1215, 1217, 962 N.Y.S.2d 524,lv. dismissed 21 N.Y.3d 944, 968 N.Y.S.2d 6, 990 N.E.2d 140;see generally *859People v. Concepcion, 17 N.Y.3d 192, 197–198, 929 N.Y.S.2d 541, 953 N.E.2d 779). We therefore hold the case, reserve decision and remit the matter to County Court to decide that part of defendant's motion.

It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Onondaga County Court for further proceedings. CENTRA, J.P., FAHEY, CARNI, SCONIERS, and VALENTINO, JJ., concur.