Opinion
1149 KA 18–02097
12-20-2019
The PEOPLE of the State of New York, Respondent, v. Loirmus DESIUS, Also Known as Baboo, Defendant–Appellant.
ANDREW D. CORREIA, PUBLIC DEFENDER, LYONS, DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT. MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF COUNSEL), FOR RESPONDENT.
ANDREW D. CORREIA, PUBLIC DEFENDER, LYONS, DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR DEFENDANT–APPELLANT.
MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Wayne County Court for further proceedings in accordance with the following memorandum: Defendant appeals from a judgment convicting him, after a nonjury trial, of two counts of assault in the second degree ( Penal Law § 120.05[1] [intentional assault], [4] [reckless assault] ), arising from an altercation during which he punched the victim in the face approximately three times, causing the victim to fall and hit his head on the concrete sidewalk. Defendant continued to punch the victim while the victim was lying on the ground unconscious, and he died as a result of his injuries. Defendant contends, inter alia, that County Court's verdict is inconsistent insofar as the court found him guilty of both recklessly and intentionally causing serious physical injury. Although defendant raised that issue at sentencing, the record " ‘does not reflect that the court ever ruled on ... defendant's motion, and a failure to rule on a motion cannot be deemed a denial thereof’ " ( People v. Stewart, 111 A.D.3d 1395, 1396, 974 N.Y.S.2d 858 [4th Dept. 2013] ; see generally People v. Concepcion, 17 N.Y.3d 192, 197–198, 929 N.Y.S.2d 541, 953 N.E.2d 779 [2011] ). We therefore hold the case, reserve decision and remit the matter to County Court to determine defendant's motion.