State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: February 23, 2017 106445 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

TYSHEN MATTHEWS, Also Known as

TYSHEEN MOORE, Also Known 

as NITTY,

Appellant.

________________________________

Calendar Date: January 9, 2017

Before: McCarthy, J.P., Egan Jr., Lynch, Clark and Mulvey, JJ.

__________

Thomas F. Garner, Middleburgh, for appellant.

Kathleen B. Hogan, District Attorney, Lake George (Emilee

B. Davenport of counsel), for respondent.

__________

Lynch, J.

Appeal from a judgment of the County Court of Washington

County (McKeighan, J.), rendered January 3, 2014, upon a verdict

convicting defendant of the crimes of robbery in the first

degree, robbery in the second degree, burglary in the second

degree, petit larceny and endangering the welfare of a child.

In June 2013, defendant was charged with robbery in the

first degree, robbery in the second degree, burglary in the

second degree, petit larceny, conspiracy in the fourth degree and

endangering the welfare of a child. County Court dismissed the

charge of conspiracy in the fourth degree as jurisdictionally

defective and, following a jury trial, defendant was convicted of
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the remaining charges. Defendant was thereafter sentenced to an

aggregate prison term of 20 years, followed by five years of

postrelease supervision. He now appeals.

Defendant argues that County Court failed to rule on that

aspect of his omnibus motion seeking inspection of the grand jury

minutes and dismissal of the indictment. As the People concede,

the record is devoid of a ruling upon the motion to inspect, as

is required by CPL 210.30 (5). Accordingly, we remit the matter

to County Court for a ruling on the record with respect to this

aspect of defendant's omnibus motion (see People v Blair, 121

AD3d 1570, 1571-1572 [2014]; People v Stewart, 111 AD3d 1395,

1396 [2013]; People v Jones, 103 AD3d 1215, 1217 [2013], lv

dismissed 21 NY3d 944 [2013]).

There is also no indication in the record that County Court

ruled on defendant's motion challenging the existence of probable

cause to justify his warrantless arrest. Although defendant did

not raise this issue in his omnibus motion or prior to the

conclusion of proof in the Wade/Huntley hearing, he did raise it

in what appears to be defense counsel's written summation after

the Wade/Huntley hearing. The People opposed defendant's

challenge to his warrantless arrest in their written summation,

but County Court did not resolve the issue in its decision

following the Wade/Huntley hearing, and there is no indication in

the record that the court ruled on it at a later time. Defendant

directed County Court's attention to the absence of a ruling on

his motion at a November 2013 pretrial conference and again at

the start of trial, to which County Court mistakenly stated that

the issue had been resolved in its decision on the Wade/Huntley

hearing. Inasmuch as the record does not reflect that County

Court ruled on defendant's motion challenging his warrantless

arrest, despite defendant's repeated attempts to alert County

Court to the absent ruling (compare People v Bigelow, 68 AD3d

1127, 1128 [2009], lv denied 14 NY3d 797 [2010]; People v Harley,

253 AD2d 699, 699 [1998], lv denied 92 NY2d 1032 [1998]), the

matter must also be remitted to County Court for it to set forth

on the record or in a written decision its determination on such

motion (see CPL 710.60 [6]; People v Mabeus, 47 AD3d 1073, 1074

[2008]; People v Brown, 263 AD2d 613, 614 [1999], lv denied 94

NY2d 877 [2000]). Pending County Court's determinations upon
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remittal, we withhold decision on the remaining issues raised by

defendant. 

McCarthy, J.P., Egan Jr., Clark and Mulvey, JJ., concur.

ORDERED that the decision is withheld, and matter remitted

to the County Court of Washington County for further proceedings

not inconsistent with this Court's decision.

ENTER:

Robert D. Mayberger

Clerk of the Court