Opinion
2012-06-15
The PEOPLE of the State of New York, Respondent, v. Nathaniel JOHNSON, Defendant–Appellant.
The Legal Aid Bureau Of Buffalo, Inc., Buffalo (Vincent F. Gugino of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.
The Legal Aid Bureau Of Buffalo, Inc., Buffalo (Vincent F. Gugino of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of Counsel), for Respondent.
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, AND SCONIERS, JJ.
MEMORANDUM:
We previously held this case, reserved decision and remitted the matter to Supreme Court “to determine, following a hearing if necessary, whether defense counsel consented to the annotated verdict sheet” ( People v. Johnson, 88 A.D.3d 1293, 1295, 930 N.Y.S.2d 362). We determined in our prior decision that defendant's remaining contentions lacked merit ( id.). Upon remittal, the court determined following a reconstruction hearing that defense counsel impliedly consented to the annotated verdict sheet, which included the language “an armed felony” with respect to robbery in the first degree, the only crime charged in the indictment. We reject defendant's present contention that the determination of implied consent is not supported by the record.
Although generally “the lack of an objection to the annotated verdict sheet by defense counsel cannot be transmuted into consent” ( People v. Damiano, 87 N.Y.2d 477, 484, 640 N.Y.S.2d 451, 663 N.E.2d 607), it is well settled that consent to the submission of an annotated verdict sheet may be implied where defense counsel “fail[s] to object to the verdict sheet after having an opportunity to review it” ( People v. Knight, 280 A.D.2d 937, 940, 721 N.Y.S.2d 166,lv. denied96 N.Y.2d 864, 730 N.Y.S.2d 38, 754 N.E.2d 1121;see People v. Washington, 9 A.D.3d 499, 500–501, 779 N.Y.S.2d 303,lv. denied 3 N.Y.3d 675, 680, 682, 784 N.Y.S.2d 13, 18, 21, 817 N.E.2d 831, 836, 839;People v. Highsmith, 248 A.D.2d 961, 962, 671 N.Y.S.2d 883,lv. denied91 N.Y.2d 1005, 1008, 676 N.Y.S.2d 133, 136, 698 N.E.2d 962, 965). Here, the court's confidential law clerk testified at the reconstruction hearing that he provided defense counsel and the prosecutor with a copy of the annotated verdict sheet at the close of proof and instructed the attorneys to let him know if they had any objections. The law clerk further testified that neither defense counsel nor the prosecutor thereafter objected to the verdict sheet, which was submitted to the jury the following day. The law clerk's testimony was corroborated by the prosecutor, who recalled having received a copy of the annotated verdict sheet from the law clerk during a conference with defense counsel at the close of proof. The law clerk's testimony was also corroborated by the fact that defense counsel had a copy of the charge list and annotated verdict sheet in his case file. The mere fact that defense counsel did not recall having received the annotated verdict sheet or having discussed it with the law clerk does not directly contradict the law clerk's testimony, which the court apparently credited.
Because defense counsel had an “opportunity to review” the annotated verdict sheet well before it was submitted to the jury and did not object to it, we conclude that the court properly determined that defendant impliedly consented to its submission to the jury ( Knight, 280 A.D.2d at 940, 721 N.Y.S.2d 166;see Highsmith, 248 A.D.2d at 962, 671 N.Y.S.2d 883;cf. People v. Gerstner, 270 A.D.2d 837, 706 N.Y.S.2d 542).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.