People v. Desius, 1149

• Decision Date: 20 December 2019
• Docket Number: KA 18–02097,1149
• Citation: 112 N.Y.S.3d 656 (Mem),178 A.D.3d 1422
• Parties: The PEOPLE of the State of New York, Respondent, v. Loirmus DESIUS, Also Known as Baboo, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

178 A.D.3d 1422

112 N.Y.S.3d 656 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Loirmus DESIUS, Also Known as Baboo, Defendant–Appellant.

1149

KA 18–02097

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: December 20, 2019

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.