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

34
KA 14-00040
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

ISAAC L. MCDONALD, DEFENDANT-APPELLANT.


ROBERT M. PUSATERI, CONFLICT DEFENDER, LOCKPORT (EDWARD P. PERLMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Niagara County Court (Sara S.
Farkas, J.), rendered December 11, 2013. The judgment convicted
defendant, upon his plea of guilty, of rape in the third degree,
disseminating indecent materials to minors in the first degree and
failure to register internet identifiers.

     It is hereby ORDERED that the case is held, the decision is
reserved, and the matter is remitted to Niagara County Court for
further proceedings in accordance with the following Memorandum:
Defendant appeals from a judgment convicting him upon his guilty plea
of, inter alia, rape in the third degree (Penal Law § 130.25 [2]). We
agree with defendant that County Court failed to rule on his motion to
withdraw his guilty plea. Contrary to the People’s contention, we
cannot “deem the court’s failure to rule on the . . . motion as a
denial thereof” (People v Spratley, 96 AD3d 1420, 1421; see People v
Concepcion, 17 NY3d 192, 197-198). We therefore hold the case,
reserve decision, and remit the matter to County Court to determine
defendant’s motion.




Entered:    February 6, 2015                       Frances E. Cafarell
                                                   Clerk of the Court
