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

602
KA 14-00190
PRESENT: WHALEN, P.J., CARNI, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

EARL F. SPRAGUE, III, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (NICHOLAS P. DIFONZO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered January 22, 2014. The judgment convicted
defendant, upon a jury verdict, of sexual abuse in the first degree
(28 counts).

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Genesee County Court for
further proceedings in accordance with the following memorandum: On
appeal from a judgment convicting him of 28 counts of sexual abuse in
the first degree (Penal Law § 130.65 [3]), defendant contends, inter
alia, that County Court erred in failing to grant his motion for a
trial order of dismissal. 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 do not address that contention inasmuch as
“ ‘we cannot deem the court’s failure to rule on the . . . motion as a
denial thereof’ ” (People v White, 134 AD3d 1414, 1415). We therefore
hold the case, reserve decision, and remit the matter to County Court
for a ruling on the motion.




Entered:    June 17, 2016                          Frances E. Cafarell
                                                   Clerk of the Court
