People v. Henriquez

OPINION OF THE COURT

Memorandum.

The order of the Appellate Term should be reversed and the matter remitted for consideration of the facts and the exercise of discretion (CPL 470.40 [2] [b]). Inasmuch as the order of the Appellate Term did not include a statement of whether the facts underlying the Criminal Court’s judgment were considered and determined to be established, we presume that the court did not consider or make any determination with respect to the facts (CPL 470.25 [2] [d]).

It was error for the Appellate Term to treat this matter as a calendar control dismissal within the…