| People v Johnson |
| 2011 NY Slip Op 07110 [88 AD3d 1293] |
| October 7, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v NathanielJohnson, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Michael J. Hillery of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.),rendered March 23, 2010. The judgment convicted defendant, upon a jury verdict, of robbery inthe first degree.
It is hereby ordered that the case is held, the decision is reserved and the matter is remitted toSupreme Court, Erie County, for further proceedings.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofrobbery in the first degree (Penal Law § 160.15 [4]). Viewing the evidence in light of theelements of the crime as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we rejectdefendant's contention that the verdict is against the weight of the evidence. The manager of theconvenience store that was robbed (hereafter, manager) identified defendant at trial as the personwho committed the robbery. The manager also testified that he was able to observe defendant'sface when defendant approached the manager before defendant entered the store wearing a"translucent" scarf over his mouth and nose. "Although a different verdict would not have beenunreasonable, we conclude that the jury did not fail to give the evidence the weight it should beaccorded in rejecting the misidentification theory of the defense" (People v Hennings, 55 AD3d1393, 1393 [2008], lv denied 12 NY3d 758 [2009]; see generally People vBleakley, 69 NY2d 490, 495 [1987]).
We further conclude that Supreme Court properly refused to suppress the testimony of themanager with respect to the photo array in which he identified defendant (see generallyPeople v Chipp, 75 NY2d 327, 335-336 [1990], cert denied 498 US 833 [1990]).There is no evidence in the record that the photo array drew the manager's attention to thephotograph of defendant or that the identification procedures employed by the police wereunduly suggestive (see People vMcCurty, 60 AD3d 1406, 1407 [2009], lv denied 12 NY3d 856 [2009]).Although the manager signed an affidavit after viewing the photo array in which he stated thatthe person he identified therein was a "possible robbery suspect," the police officer whopresented the photo array to the manager testified at the Wade hearing that the managerunequivocally and without hesitation identified defendant in the photo array. In addition, thequalified language used by the manager in his affidavit merely mirrored the language used by theofficer, who instructed him that the photo array may possibly [*2]contain a photograph of the person who committed the robbery.Under the circumstances of this case, we perceive no basis upon which to disturb the court'sdetermination with respect to the identification testimony of the manager.
Defendant further contends that the People committed a Brady violation bywithholding exculpatory evidence until after the trial had commenced. As defendant correctlyconcedes, however, that contention is unpreserved for our review (see generally People v Caswell, 56AD3d 1300, 1303 [2008], lv denied 11 NY3d 923 [2009], reconsideration denied12 NY3d 781 [2009], cert denied 556 US —, 129 S Ct 2775 [2009]). In anyevent, the alleged Brady violation concerns matters outside the record on appeal and thusmay properly be raised by way of a motion pursuant to CPL article 440 (see People v Ellis, 73 AD3d 1433[2010], lv denied 15 NY3d 851 [2010]; see generally People v Wilson, 49 AD3d 1224 [2008], lvdenied 10 NY3d 966 [2008]).
We agree with defendant, however, that the verdict sheet contains an impermissibleannotation. The court included the language "an armed felony" in describing the sole count of theindictment, charging defendant with robbery in the first degree, but the record fails todemonstrate that defense counsel consented to the verdict sheet. In People v Damiano (87NY2d 477, 483 [1996]), the Court of Appeals concluded that, "when the court determines thatlisting statutory elements or terms of the crime—whether as labels or a shorthand forstatutory text—on the verdict sheet will aid the jury in [its] deliberations, the court mustpermit [defense] counsel to review the annotated verdict sheet and obtain [defense] counsel'sconsent prior to submitting it to the jury." "[T]he lack of an objection to the annotatedverdict sheet by defense counsel cannot be transmuted into consent" (id. at 484; seePeople v Collins, 99 NY2d 14, 17 [2002]), and "[t]he submission of [an] annotated verdictsheet, not consented to by [defense] counsel, cannot be deemed harmless" error(Damiano, 87 NY2d at 485).
We note that Damiano was superseded in part by amendments to CPL 310.20 (2)(see L 1996, ch 630, § 2; L 2002, ch 588, § 1 [2]), which allow annotatedverdict sheets where "the court submits two or more counts" to the jury and only for "the solepurpose of . . . distinguish[ing] between the counts." Here, however, the indictmentcontained only one count. Those statutory provisions are therefore inapplicable, and theannotation on the verdict sheet was impermissible pursuant to Damiano. We thereforehold the case, reserve decision and remit the matter to Supreme Court to determine, following ahearing if necessary, whether defense counsel consented to the annotated verdict sheet (seePeople v Knight [appeal No. 1], 274 AD2d 957 [2000]; People v Ross, 230 AD2d924 [1996]; People v Albert, 225 AD2d 1097 [1996]).
Finally, the contention of defendant with respect to the court's responses to the first two jurynotes is not preserved for our review (see CPL 470.05 [2]; People v Samuels, 24 AD3d 1287[2005], lv denied 7 NY3d 817 [2006]; People v Parker, 304 AD2d 146, 159[2003], lv denied 100 NY2d 585 [2003]), and we decline to exercise our power to reviewthat contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]).We have considered defendant's remaining contentions and conclude that they are without merit.Present—Fahey, J.P., Peradotto, Lindley, Sconiers and Green, JJ.