Case sent back to lower court; judge never ruled on motion

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A state appeals court has sent a case back to the lower court because the judge never ruled on a defense motion.

Defendant David L. Desmond was convicted in October 2016 of second-degree burglary and third-degree robbery before Monroe County Court Judge Christopher S. Ciaccio, in October 2016,

In a recent decision, the Appellate Division of state Supreme Court, Fourth Department, reserved decision on an appeal of the convictions and sent the case back to Monroe County Court for a ruling on a defense motion.

Desmond’s appellate attorney, Bradley E. Keem, argued that the showup identification procedures involving the two victims were “unduly suggestive” and Ciaccio should have suppressed the identification evidence.

The Fourth Department rejected that argument because the showup procedures were “reasonable under the circumstances because (they were) conducted in geographic and temporal proximity to the crime.”

“Moreover, the visual showup procedure involving one of the victims was not rendered unduly suggestive by the fact that defendant was in handcuffs and was illuminated — in the middle of the night — by the police vehicle’s high beams,” the court wrote.

The Fourth Department also ruled that the voice identification procedure used by police “was not unduly suggestive” because the police “did not convey their beliefs or otherwise suggest defendant’s guilt to the victim.”

“Although the victim’s degree of confidence in his identification of defendant as the intruder increased as defendant continued to talk, until the victim became ‘definitely sure,’ at no time did the police pressure the victim into making an identification. Based on the totality of the circumstances, we conclude that the voice identification procedure was not unduly suggestive,” the panel ruled.

Keem also argued that the evidence was insufficient to support the conviction “and that the matter must be remitted for a ruling on his motion for a trial order of dismissal with respect to the … (second-degree burglary count) of which he was convicted.”

At the close of the prosecution case, Desmond’s trial attorney filed a motion for a trial order of dismissal, arguing on the grounds that the prosecution “failed to make a prima facie case with respect to the second count of the indictment.”

“There is no indication in the record that the court ruled on that part of defendant’s motion,” according to the Fourth Department’s decision.

“We lack the power to review defendant’s contention that the evidence is legally insufficient to support the conviction of burglary in the second degree,” the court wrote.

“We therefore hold the case, reserve decision, and remit the matter to County Court for a ruling on that part of the motion,” the court wrote.

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