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

1133
KA 11-01321
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

WILSON STEWART, DEFENDANT-APPELLANT.


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.


     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.

     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 in accordance with the following 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 AD3d 1215, 1217, lv dismissed
21 NY3d 944; see generally People v Concepcion, 17 NY3d 192, 197-198).
We therefore hold the case, reserve decision and remit the matter to
County Court to decide that part of defendant’s motion.




Entered:   November 15, 2013                       Frances E. Cafarell
                                                   Clerk of the Court
