| People v Johnson |
| 2012 NY Slip Op 04875 [96 AD3d 1586] |
| June 15, 2012 |
| 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 appeal was held by this Court by order entered October 7, 2011,decision was reserved and the matter was remitted to Supreme Court, Erie County, for furtherproceedings (88 AD3d 1293 [2011]). The proceedings were held and completed.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: We previously held this case, reserved decision and remitted the matter toSupreme Court "to determine, following a hearing if necessary, whether defense counselconsented to the annotated verdict sheet" (People v Johnson, 88 AD3d 1293, 1295[2011]). We determined in our prior decision that defendant's remaining contentions lacked merit(id.). Upon remittal, the court determined following a reconstruction hearing that defensecounsel impliedly consented to the annotated verdict sheet, which included the language "anarmed felony" with respect to robbery in the first degree, the only crime charged in theindictment. We reject defendant's present contention that the determination of implied consent isnot supported by the record.
Although generally "the lack of an objection to the annotated verdict sheet by defensecounsel cannot be transmuted into consent" (People v Damiano, 87 NY2d 477, 484[1996]), it is well settled that consent to the submission of an annotated verdict sheet may beimplied where defense counsel "fail[s] to object to the verdict sheet after having an opportunityto review it" (People v Knight, 280 AD2d 937, 940 [2001], lv denied 96 NY2d864 [2001]; see People vWashington, 9 AD3d 499, 500-501 [2004], lv denied 3 NY3d 682 [2004];People v Highsmith, 248 AD2d 961, 962 [1998], lv denied 91 NY2d 1008[1998]). Here, the court's confidential law clerk testified at the reconstruction hearing that heprovided defense counsel and the prosecutor with a copy of the annotated verdict sheet at theclose of proof and instructed the attorneys to let him know if they had any objections. The lawclerk further testified that neither defense counsel nor the prosecutor thereafter objected to theverdict sheet, which was submitted to the jury the following day. The law clerk's testimony wascorroborated by the prosecutor, who recalled having received a copy of the annotated verdictsheet from the law clerk during a conference with defense counsel at the close of proof. The lawclerk's testimony was also corroborated by the fact that defense counsel [*2]had a copy of the charge list and annotated verdict sheet in his casefile. The mere fact that defense counsel did not recall having received the annotated verdict sheetor 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 wellbefore it was submitted to the jury and did not object to it, we conclude that the court properlydetermined that defendant impliedly consented to its submission to the jury (Knight, 280AD2d at 940; see Highsmith, 248 AD2d at 962; cf. People v Gerstner, 270 AD2d837 [2000]). Present—Fahey, J.P., Peradotto, Lindley and Sconiers, JJ.