People v. Chattley

89 A.D.3d 1557, 932 N.Y.2d 750

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 18, 2011
• Status: Published

Opinion

Memorandum:

On appeal from a judgment convicting him, upon his plea of guilty, of criminal possession of stolen property in the fourth degree (Penal Law § 165.45 [5]) and reckless endangerment in the first degree (§ 120.25), defendant contends that Supreme Court erred in failing to grant his pro se motion to withdraw his plea. There is no indication in the record, however, that the court ruled on the motion; i.e., the court neither granted nor denied it on the record before us. The Court of Appeals “has construed CPL 470.15 (1) as a legislative restriction on the Appellate Division’s power to review issues either decided in an appellant’s favor, or not ruled upon, by the trial court” (People v LaFontaine, 92 NY2d 470, 474 [1998], rearg denied 93 NY2d 849 [1999] [emphasis added]; see People v Concepcion, 17 NY3d 192, 197-198 [2011]), and thus the court’s failure to rule on the motion cannot be deemed a denial thereof. We therefore hold the case, reserve decision and remit the matter to Supreme Court for a ruling on defendant’s pro se motion. Present — Centra, J.P, Fahey, Lindley and Martoche, JJ.