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

412
KA 06-01424
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ANTHONY N. OTT, DEFENDANT-APPELLANT.


MULDOON & GETZ, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR
DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (LESLIE E. SWIFT OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Stephen R.
Sirkin, J.), rendered April 5, 2006. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree and
assault in the first degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the sentence imposed for
murder in the second degree under count one of the indictment and as
modified the judgment is affirmed, and the matter is remitted to
Monroe County Court for resentencing on that count of the indictment.

     Memorandum: On appeal from a judgment convicting him after a
jury trial of murder in the second degree (Penal Law § 125.25 [1]) and
assault in the first degree (§ 120.10 [1]), defendant contends that
his case was improperly transferred between Supreme Court, Monroe
County and Monroe County Court for hearing and trial purposes because
there are no transfer orders in the record (see 22 NYCRR 200.14).
Defendant failed to preserve that contention for our review (see CPL
470.05 [2]), and we decline to exercise our power to review it as a
matter of discretion in the interest of justice (see CPL 470.15 [6]
[a]). Insofar as defendant contends that the matter was in fact
pending in Supreme Court and that the Acting County Court Judge who
presided over the suppression hearing lacked subject matter
jurisdiction to do so, we conclude that defendant waived that
contention. Although a contention that a judge lacks subject matter
jurisdiction to preside over a matter may be raised for the first time
on appeal (see People v Correa, 15 NY3d 213), “[g]iven that Supreme
Court [and County Court] had the power to hear the case, the transfer
error defendant alleges is the equivalent of an improper venue claim,
which is not jurisdictional in nature and is waived if not timely
raised . . . Because defendant did not object in the trial court to
the (purported) transfer of [his] case to [County] Court, we may not
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                                                         KA 06-01424

consider this . . . claim” (People v Wilson, 14 NY3d 895, 897).
Contrary to defendant’s contention, People v Adams (74 AD3d 1897) does
not require a different result. There, the matter was transferred to
a different judge in violation of, inter alia, the requirement set
forth in 22 NYCRR 200.14 that the transfer must occur before the entry
of the plea (see id. at 1899). Here, there was no postplea transfer,
and thus “the ‘essential nature’ of the right to be sentenced as
provided by law” was not implicated (People v Fuller, 57 NY2d 152,
156).

     Because defendant on appeal raises a different ground for
severance than that set forth in his pretrial motion for that relief,
defendant failed to preserve for our review his present contention in
support of severance (see People v Hall, 48 AD3d 1032, lv denied 11
NY3d 789; People v Wooden, 296 AD2d 865, lv denied 99 NY2d 541; People
v Reed, 236 AD2d 866, lv denied 89 NY2d 1099). In any event, the
record does not support defendant’s present contention that the
summation of his codefendant’s attorney was inconsistent with his own
defense and thus that “the core of each defense [was] in
irreconcilable conflict with the other and [that] there [was] a
significant danger, as both defenses [were] portrayed to the trial
court, that the conflict alone would lead the jury to infer
defendant’s guilt” (People v Mahboubian, 74 NY2d 174, 184).

     Contrary to the further contention of defendant, the trial judge
did not violate Judiciary Law § 21 by allegedly issuing a decision on
defendant’s suppression motion without hearing the evidence in support
of the motion. The Acting County Court Judge who presided over the
Wade hearing expressly denied the codefendant’s suppression motion but
failed expressly to rule on defendant’s suppression motion. It is
well settled, however, that a court’s failure to rule on a motion is
deemed a denial thereof (see e.g. People v Mason, 305 AD2d 979, lv
denied 100 NY2d 563; People v Jackson, 291 AD2d 930, lv denied 98 NY2d
677; People v Virgil, 269 AD2d 850, lv denied 95 NY2d 806).
Consequently, defendant’s suppression motion is deemed to have been
denied by the Acting County Court Judge prior to the start of trial.
Indeed, we note that the trial judge merely clarified that it was
denied when he stated that he deemed the e-mail from the Acting County
Court Judge denying the codefendant’s motion to be a denial of
defendant’s motion as well.

     We agree with defendant, however, that the sentence imposed on
count one, charging him with murder in the second degree, must be
vacated and the matter remitted for resentencing with respect to that
count, “[b]ecause of the discrepancy between the sentencing minutes
and the certificate of conviction” with respect to that count (People
v Ingram, 263 AD2d 959, 960; see People v Beard [appeal No. 2], 41
AD3d 1251, lv denied 9 NY3d 920, 924; People v Shand, 280 AD2d 943,
944, lv denied 96 NY2d 834). We therefore modify the judgment
accordingly, and we remit the matter to County Court for resentencing
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                                                  KA 06-01424

on that count of the indictment.




Entered:   April 29, 2011                Patricia L. Morgan
                                         Clerk of the Court
