Opinion
1002 KA 19-00797
02-03-2023
The PEOPLE of the State of New York, Respondent, v. Leon G. ROACH, Defendant-Appellant.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (CAROLYN WALTHER OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (CAROLYN WALTHER OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, BANNISTER, AND MONTOUR, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Monroe County Court for further proceedings in accordance with the following memorandum: Defendant appeals from a judgment convicting him following a bench trial of, inter alia, attempted assault in the first degree ( Penal Law §§ 110.00, 120.10 [1] ). Defendant's contention that he was denied effective assistance of counsel is based upon matters outside the record and thus is not properly before us on his direct appeal and must be pursued by way of a motion pursuant to CPL article 440 (see People v. Jackson , 153 A.D.3d 1605, 1606, 60 N.Y.S.3d 893 [4th Dept. 2017], lv denied 30 N.Y.3d 1106, 77 N.Y.S.3d 5, 101 N.E.3d 391 [2018] ). Defendant also 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 County 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 "we cannot deem the court's failure to rule on the ... motion as a denial thereof" ( People v. Capitano , 198 A.D.3d 1324, 1325, 152 N.Y.S.3d 391 [4th Dept. 2021] [internal quotation marks omitted]; see generally People v. Concepcion , 17 N.Y.3d 192, 197-198, 929 N.Y.S.2d 541, 953 N.E.2d 779 [2011] ; 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 therefore hold the case, reserve decision, and remit the matter to County Court for a ruling on defendant's motion (see Capitano , 198 A.D.3d at 1325, 152 N.Y.S.3d 391 ). In light of our determination, we do not address defendant's remaining contentions.