               SUPREME COURT OF THE STATE OF NEW YORK
                  Appellate Division, Fourth Judicial Department

673
KA 10-01095
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                     MEMORANDUM AND ORDER

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.


     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 further proceedings (88   AD3d 1293). 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 to Supreme Court “to determine, following a
hearing if necessary, whether defense counsel consented to the
annotated verdict sheet” (People v Johnson, 88 AD3d 1293, 1295). 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 NY2d 477, 484), 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 AD2d 937, 940, lv
denied 96 NY2d 864; see People v Washington, 9 AD3d 499, 500-501, lv
denied 3 NY3d 675, 680, 682; People v Highsmith, 248 AD2d 961, 962, lv
denied 91 NY2d 1005, 1008). Here, the court’s confidential law clerk
testified at the reconstruction hearing that he provided defense
                                 -2-                           673
                                                         KA 10-01095

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 AD2d at 940; see Highsmith, 248 AD2d at 962; cf. People v
Gerstner, 270 AD2d 837).




Entered:   June 15, 2012                        Frances E. Cafarell
                                                Clerk of the Court
