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

1273
KA 14-00297
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, VALENTINO, AND WHALEN, 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.

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 January 27, 2014. The judgment convicted
defendant, upon a nonjury verdict, of driving while intoxicated, a
class D felony (two counts), and aggravated unlicensed operation of a
motor vehicle in the first degree.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Chautauqua County Court for a
determination of the motion following further proceedings if
necessary.

     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 take judicial notice of the location of
the arrest and the boundaries of the City and Town. The proof had not
closed at that point, and the court reserved decision on the motion to
allow the parties to make written submissions. The court never ruled
on the motion, but issued a written verdict finding defendant guilty
of the charges and noting that it had reviewed the parties’
submissions.

     Defendant contends that the court erred in refusing to take
judicial notice of the relevant geographical facts and in denying her
motion to dismiss the charges. We do not address that contention
because, in accordance with People v Concepcion (17 NY3d 192, 197-198)
                                 -2-                         1273
                                                        KA 14-00297

and People v LaFontaine (92 NY2d 470, 474, rearg denied 93 NY2d 849),
“we cannot deem the court’s failure to rule on the . . . motion as a
denial thereof” (People v Spratley, 96 AD3d 1420, 1421). We therefore
hold the case, reserve decision, and remit the matter to County Court
for a ruling on the motion following such further proceedings as may
be necessary.




Entered:   December 23, 2015                   Frances E. Cafarell
                                               Clerk of the Court
