           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
1237
KA 10-00056
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                               MEMORANDUM AND ORDER

BLAIR CHATTLEY, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KAREN RUSSO-MCLAUGHLIN
OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County
(Christopher J. Burns, J.), rendered August 27, 2009. The judgment
convicted defendant, upon his plea of guilty, of criminal possession
of stolen property in the fourth degree and reckless endangerment in
the first degree.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Supreme Court, Erie County, for
further proceedings.

     Memorandum: On appeal from a judgment convicting him, upon his
plea of guilty, of criminal possession of stolen property in the
fourth degree (Penal Law § 165.45 [5]) and reckless endangerment in
the first degree (§ 120.25), defendant contends that Supreme Court
erred in failing to grant his pro se motion to withdraw his plea.
There is no indication in the record, however, that the court ruled on
the motion; i.e., the court neither granted nor denied it on the
record before us. The Court of Appeals “has construed CPL 470.15 (1)
as a legislative restriction on the Appellate Division’s power to
review issues either decided in an appellant’s favor, or not ruled
upon, by the trial court” (People v LaFontaine, 92 NY2d 470, 474,
rearg denied 93 NY2d 849 [emphasis added]; see People v Concepcion, 17
NY3d 192, 197-198), and thus the court’s failure to rule on the motion
cannot be deemed a denial thereof. We therefore hold the case,
reserve decision and remit the matter to Supreme Court for a ruling on
defendant’s pro se motion.




Entered:   November 18, 2011                       Patricia L. Morgan
                                                   Clerk of the Court
