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

46
KA 14-00297
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ELIZABETH A. WHITE, DEFENDANT-APPELLANT.


EASTON THOMPSON KASPEREK SHIFFRIN LLP, ROCHESTER (DONALD M. THOMPSON
OF COUNSEL), FOR DEFENDANT-APPELLANT.

PATRICK E. SWANSON, DISTRICT ATTORNEY, MAYVILLE (ANDREW M. MOLITOR OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Chautauqua County Court (John T.
Ward, J.), rendered January 27, 2014. The appeal was held by this
Court by order entered December 23, 2015, decision was reserved and
the matter was remitted to Chautauqua County Court for further
proceedings (134 AD3d 1414). The proceedings were held and completed
(Michael M. Mohun, A.J.).

     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 her, following a nonjury
trial, of two counts of driving while intoxicated as class D felonies
(Vehicle and Traffic Law §§ 1192 [2], [3]; 1193 [1] [c] [ii]) and
aggravated unlicensed operation of a motor vehicle in the first degree
(§ 511 [3] [a] [i]). At the close of the People’s case, defense
counsel moved for a trial order of dismissal on the ground that the
arresting officers, who were employed by the Town of Ellicott (Town),
exceeded their jurisdictional authority when they arrested defendant
in the City of Jamestown (City). Defendant also requested that County
Court (Ward, J.) take judicial notice of the location of the arrest
and the boundaries of the City and Town. The court reserved decision
on the motion to allow the parties to make written submissions. The
court never ruled on the motion but, before defendant rested and the
proof was closed, it issued a written verdict finding defendant guilty
of the charges and noting that it had reviewed the parties’
submissions.

     When the appeal was previously before us, we held the case,
reserved decision, and remitted the matter to County Court for a
ruling on the motion for a trial order of dismissal “following such
further proceedings as may be necessary” (People v White, 134 AD3d
1414, 1415). Upon remittal, the court (Mohun, A.J.) denied the motion
                                 -2-                            46
                                                         KA 14-00297

and concluded that there was no need to take judicial notice of the
location of the arrest or the boundaries of the City and Town.
Following those rulings, however, the court did not afford defendant
the opportunity to present a defense, notwithstanding that defendant
had not rested and the proof was not closed. Contrary to the court’s
conclusion, the fact that we did not set aside its premature verdict
when the appeal was previously before us did not preclude it from
considering further proof or making new factual determinations (cf.
People v Cunningham, 95 NY2d 909, 910; see generally People v
Mitchell, 144 AD3d 1598, 1600). We therefore hold the case, reserve
decision, and remit the matter to County Court to afford defendant the
opportunity to present a defense.




Entered:   February 10, 2017                    Frances E. Cafarell
                                                Clerk of the Court
