| People v Miller |
| 2010 NY Slip Op 03982 [73 AD3d 1435] |
| May 7, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Jeffery H.Miller, Appellant. |
—[*1]
Appeal from a judgment of the Supreme Court, Monroe County (Thomas M. Van Strydonck,J.), rendered October 23, 2006. The judgment convicted defendant, upon a jury verdict, ofmurder in the second degree, assault in the second degree, criminal possession of a weapon inthe second degree, and criminal possession of a weapon in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the lawand a new trial is granted on counts one, five, six and seven of the indictment.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of, inter alia,murder in the second degree (Penal Law § 125.25 [1]), criminal possession of a weapon inthe second degree (§ 265.03 [former (2)]), and criminal possession of a weapon in thethird degree (§ 265.02 [former (4)]), defendant contends that reversal is required becausethe verdict sheet contained improper annotations and legal instructions. We agree.
Inasmuch as "two or more counts charging offenses set forth in the same article of the law"were submitted to the jury, i.e., the two weapons possession counts (CPL 310.20 [2]), SupremeCourt was permitted to provide the jury with a verdict sheet "set[ting] forth the dates, names ofcomplainants or specific statutory language, without defining the terms, by which the counts maybe distinguished" (id.). Here, the court included in the verdict sheet an instruction thatthe jury was to determine whether "the Defendant established by a preponderance of theevidence that he acted under Extreme Emotional Disturbance." We conclude that the courtthereby exceeded the statutory bounds of CPL 310.20 (2) by giving the jury a written legalinstruction on the burden of proof, rather than merely complying with "the statutory purpose ofenabling the jury to distinguish between [the two weapons possession counts]" (People v Rosario, 26 AD3d 206,207 [2006], lv denied 7 NY3d 762 [2006]; see People v Sotomayer, 173 AD2d500, 506-508 [1991], affd 79 NY2d 1029 [1992]).
We reject the People's contention that harmless error analysis may be applied. The Court ofAppeals expressly rejected the application of harmless error analysis to verdict sheet errors inPeople v Damiano (87 NY2d 477, 484-485 [1996]), and the Court thereafter wrote thatthe submission [*2]of a verdict sheet to which the defendant hadnot consented "affects the mode of proceedings prescribed by law" (People v Collins, 99NY2d 14, 17 [2002]), which constitutes per se reversible error (see generally People v Kisoon, 8NY3d 129 [2007]). Contrary to the People's contention, nothing in the amendments to CPL310.20 (2), or their statutory history, suggests a legislative intent to overrule Damiano inthat regard.
In light of our determination, we do not reach defendant's remaining contentions.Present—Centra, J.P., Peradotto, Lindley, Green and Gorski, JJ.