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

1252
KA 12-01625
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                      V                              MEMORANDUM AND ORDER

JOSHUA L. MACK, DEFENDANT-APPELLANT.


ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL),
FOR DEFENDANT-APPELLANT.

DAVID W. FOLEY, DISTRICT ATTORNEY, MAYVILLE (ANDREW M. MOLITOR OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Chautauqua County Court (John T.
Ward, J.), rendered April 23, 2012. The judgment convicted defendant,
upon his plea of guilty, of criminal possession of a controlled
substance in the fourth degree (two counts).

     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:
Defendant appeals from a judgment convicting him upon his guilty plea
of two counts of criminal possession of a controlled substance in the
fourth degree (Penal Law § 220.09 [1]). Contrary to defendant’s
contention, the sentence is not unduly harsh or severe. We agree with
defendant, however, that County Court failed to rule on his oral
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:    November 21, 2014                      Frances E. Cafarell
                                                   Clerk of the Court
