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

1035
KA 10-01095
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, SCONIERS, AND GREEN, 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 (PATRICK SHELDON 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 judgment
convicted defendant, upon a jury verdict, of robbery in the first
degree.

     It is hereby ORDERED that the case is held, the decision is
reserved and the matter is remitted to Supreme Court, Erie County, for
further proceedings.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of robbery in the first degree (Penal Law § 160.15
[4]). Viewing the evidence in light of the elements of the crime as
charged to the jury (see People v Danielson, 9 NY3d 342, 349), we
reject defendant’s contention that the verdict is against the weight
of the evidence. The manager of the convenience store that was robbed
(hereafter, manager) identified defendant at trial as the person who
committed the robbery. The manager also testified that he was able to
observe defendant’s face 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 been
unreasonable, we conclude that the jury did not fail to give the
evidence the weight it should be accorded in rejecting the
misidentification theory of the defense” (People v Hennings, 55 AD3d
1393, 1393, lv denied 12 NY3d 758; see generally People v Bleakley, 69
NY2d 490, 495).

     We further conclude that Supreme Court properly refused to
suppress the testimony of the manager with respect to the photo array
in which he identified defendant (see generally People v Chipp, 75
NY2d 327, 335-336, cert denied 498 US 833). There is no evidence in
the record that the photo array drew the manager’s attention to the
photograph of defendant or that the identification procedures employed
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                                                         KA 10-01095

by the police were unduly suggestive (see People v McCurty, 60 AD3d
1406, 1407, lv denied 12 NY3d 856). Although the manager signed an
affidavit after viewing the photo array in which he stated that the
person he identified therein was a “possible robbery suspect,” the
police officer who presented the photo array to the manager testified
at the Wade hearing that the manager unequivocally and without
hesitation identified defendant in the photo array. In addition, the
qualified language used by the manager in his affidavit merely
mirrored the language used by the officer, who instructed him that the
photo array may possibly 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’s determination with
respect to the identification testimony of the manager.

     Defendant further contends that the People committed a Brady
violation by withholding exculpatory evidence until after the trial
had commenced. As defendant correctly concedes, however, that
contention is unpreserved for our review (see generally People v
Caswell, 56 AD3d 1300, 1303, lv denied 11 NY3d 923, 12 NY3d 781, cert
denied ___ US ___, 129 S Ct 2775). In any event, the alleged Brady
violation concerns matters outside the record on appeal and thus may
properly be raised by way of a motion pursuant to CPL article 440 (see
People v Ellis, 73 AD3d 1433, lv denied 15 NY3d 851; see generally
People v Wilson, 49 AD3d 1224, lv denied 10 NY3d 966).

     We agree with defendant, however, that the verdict sheet contains
an impermissible annotation. The court included the language “an
armed felony” in describing the sole count of the indictment, charging
defendant with robbery in the first degree, but the record fails to
demonstrate that defense counsel consented to the verdict sheet. In
People v Damiano (87 NY2d 477, 483), the Court of Appeals concluded
that, “when the court determines that listing statutory elements or
terms of the crime--whether as labels or a shorthand for statutory
text--on the verdict sheet will aid the jury in [its] deliberations,
the court must permit [defense] counsel to review the annotated
verdict sheet and obtain [defense] counsel’s consent prior to
submitting it to the jury.” “[T]he lack of an objection to the
annotated verdict sheet by defense counsel cannot be transmuted into
consent” (id. at 484; see People v Collins, 99 NY2d 14, 17), and
“[t]he submission of [an] annotated verdict sheet, 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 annotated verdict sheets where “the court submits two or more
counts” to the jury and only for “the sole purpose of . . .
distinguish[ing] between the counts.” Here, however, the indictment
contained only one count. Those statutory provisions are therefore
inapplicable, and the annotation on the verdict sheet was
impermissible pursuant to Damiano. We therefore hold the case,
reserve decision and remit the matter to Supreme Court to determine,
following a hearing if necessary, whether defense counsel consented to
the annotated verdict sheet (see People v Knight [appeal No. 1], 274
                                 -3-                          1035
                                                         KA 10-01095

AD2d 957; People v Ross, 230 AD2d 924; People v Albert, 225 AD2d
1097).

     Finally, the contention of defendant with respect to the court’s
responses to the first two jury notes is not preserved for our review
(see CPL 470.05 [2]; People v Samuels, 24 AD3d 1287, lv denied 7 NY3d
817; People v Parker, 304 AD2d 146, 159, lv denied 100 NY2d 585), and
we decline to exercise our power to review that 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.




Entered:   October 7, 2011                     Patricia L. Morgan
                                               Clerk of the Court
