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

1244
KA 12-02087
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

SHAWN M. HALLMARK, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


R. THOMAS RANKIN, PUBLIC DEFENDER, MAYVILLE (LYLE T. HAJDU OF
COUNSEL), FOR DEFENDANT-APPELLANT.

DAVID W. FOLEY, DISTRICT ATTORNEY, MAYVILLE (PATRICK E. SWANSON OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Chautauqua County Court (John T.
Ward, J.), rendered October 1, 2012. The judgment convicted
defendant, upon his plea of guilty, of criminal possession of a forged
instrument in the second degree.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Chautauqua County Court for
further proceedings in accordance with the following Memorandum: In
appeal No. 1, defendant appeals from a judgment convicting him upon
his plea of guilty of criminal possession of a forged instrument in
the second degree (Penal Law § 170.25) and, in appeal No. 2, he
appeals from a judgment convicting him upon his plea of guilty of
attempted criminal sale of a controlled substance in the fifth degree
(§§ 110.00, 220.31). Defendant contends in each appeal that County
Court erred in denying his pro se motion to withdraw his plea.
However, there is no indication in the record that the court ruled on
the motion. 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, rearg denied
93 NY2d 849; see People v Concepcion, 17 NY3d 192, 197-198), 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 County Court for a ruling on defendant’s pro se motion (see
People v Chattley, 89 AD3d 1557, 1558).




Entered:    November 21, 2014                      Frances E. Cafarell
                                                   Clerk of the Court
