        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1116
KA 11-02605
PRESENT: SMITH, J.P., DEJOSEPH, CURRAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ARTAMION J. MOORE, DEFENDANT-APPELLANT.


CHARLES T. NOCE, CONFLICT DEFENDER, ROCHESTER (KIMBERLY J. CZAPRANSKI
OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John L.
DeMarco, J.), rendered December 14, 2011. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree,
criminal possession of a weapon in the second degree (two counts) and
criminal possession of a weapon in the third degree.

     It is hereby ORDERED that the case is held, the decision is
reserved, and the matter is remitted to Monroe County Court for
further proceedings in accordance with the following memorandum:
Defendant appeals from a judgment convicting him upon a jury verdict
of, inter alia, murder in the second degree (Penal Law § 125.25 [1]).
Viewing the evidence in light of the elements of the crimes as charged
to the jury (see People v Danielson, 9 NY3d 342, 349), we conclude
that the verdict is not against the weight of the evidence (see People
v Bleakley, 69 NY2d 490, 495).

     At the close of the People’s case, defendant moved for a trial
order of dismissal, and County Court denied that motion with respect
to the charge of murder in the second degree and reserved decision
with respect to the remaining charges. The matter was submitted to
the jury, which issued a verdict convicting defendant of the charges.
The court never ruled on the remainder of the motion. On appeal,
defendant contends that the evidence is not legally sufficient to
support the charges and thus that the court erred in denying his
motion. We do “not address that contention because, in accordance
with People v Concepcion (17 NY3d 192, 197-198) and People v
LaFontaine (92 NY2d 470, 474, rearg denied 93 NY2d 849), ‘we cannot
deem the court’s failure to rule on the . . . motion as a denial
thereof’ ” (People v White, 134 AD3d 1414, 1415; see People v
Spratley, 96 AD3d 1420, 1421). We therefore hold the case, reserve
decision, and remit the matter to County Court for a ruling on the
                               -2-                 1116
                                              KA 11-02605

remainder of the motion.




Entered:   February 10, 2017         Frances E. Cafarell
                                     Clerk of the Court
