Opinion
767 KA 19-00886
10-01-2021
The PEOPLE of the State of New York, Respondent, v. Thomas CAPITANO, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER 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 in accordance with the following memorandum: Defendant appeals from a judgment convicting him, upon a nonjury verdict, of driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs as a class D felony ( Vehicle and Traffic Law §§ 1192 [4-a] ; 1193 [1] [c] [ii-a]). Contrary to defendant's contention, we conclude that Supreme Court properly refused to suppress his statements to two police officers (see People v. Thomas , 166 A.D.3d 1499, 1500, 87 N.Y.S.3d 431 [4th Dept. 2018], lv denied 32 N.Y.3d 1178, 97 N.Y.S.3d 616, 121 N.E.3d 244 [2019] ; People v. Schumaker , 136 A.D.3d 1369, 1373, 25 N.Y.S.3d 487 [4th Dept. 2016], lv denied 27 N.Y.3d 1075, 38 N.Y.S.3d 845, 60 N.E.3d 1211 [2016], reconsideration denied 28 N.Y.3d 974, 43 N.Y.S.3d 261, 66 N.E.3d 7 [2016] ; People v. Carbonaro , 134 A.D.3d 1543, 1546-1547, 23 N.Y.S.3d 525 [4th Dept. 2015], lv denied 27 N.Y.3d 994, 38 N.Y.S.3d 104, 59 N.E.3d 1216 [2016], reconsideration denied 27 N.Y.3d 1149, 39 N.Y.S.3d 384, 62 N.E.3d 124 [2016] ).
Defendant further contends that the evidence is legally insufficient to support the conviction. At the close of the People's proof, defendant moved for a trial order of dismissal, and the court reserved decision. Although defendant renewed the motion at the close of his proof, the court never ruled on the motion and, at a later appearance, rendered a guilty verdict. Thus, we may not address defendant's contention because, "in accordance with People v. Concepcion, 17 N.Y.3d 192, 197-198, 929 N.Y.S.2d 541, 953 N.E.2d 779 (2011) and People v. LaFontaine, 92 N.Y.2d 470, 474, 682 N.Y.S.2d 671, 705 N.E.2d 663 (1998), rearg denied 93 N.Y.2d 849, 688 N.Y.S.2d 495, 710 N.E.2d 1094 (1999), we cannot deem the court's failure to rule on the ... motion as a denial thereof" ( People v. Bennett , 180 A.D.3d 1357, 1358, 115 N.Y.S.3d 737 [4th Dept. 2020] [internal quotation marks omitted]; see People v. White , 134 A.D.3d 1414, 1415, 22 N.Y.S.3d 723 [4th Dept. 2015] ). We therefore hold the case, reserve decision, and remit the matter to Supreme Court for a ruling on defendant's motion (see Bennett , 180 A.D.3d at 1358, 115 N.Y.S.3d 737 ; White , 134 A.D.3d at 1415, 22 N.Y.S.3d 723 ). In light of our determination, we do not address defendant's remaining challenge to the verdict.
Finally, we note—as the People correctly concede—that the sentence is illegal insofar as the court directed that defendant serve a term of five years of probation, with an ignition interlock device for a period thereof, consecutive to the indeterminate term of imprisonment of 1 to 3 years on his conviction for violating Vehicle and Traffic Law § 1192 (4-a) (see Penal Law §§ 60.01 [2] [d] ; 60.21; People v. Giacona , 130 A.D.3d 1565, 1566, 14 N.Y.S.3d 850 [4th Dept. 2015] ; People v. Flagg , 107 A.D.3d 1613, 1614, 967 N.Y.S.2d 577 [4th Dept. 2013], lv denied 22 N.Y.3d 1138, 983 N.Y.S.2d 496, 6 N.E.3d 615 [2014]).