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

1322
KA 09-01187
PRESENT: SCUDDER, P.J., FAHEY, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ISIAH WILLIAMS, JR., DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


SHIRLEY A. GORMAN, BROCKPORT, FOR DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (JAMES B. RITTS OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (Frederick G.
Reed, A.J.), rendered May 1, 2009. The judgment convicted defendant,
upon a jury verdict, of criminal possession of a forged instrument in
the second degree and grand larceny in the fourth degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, a new trial is granted on count two
of the indictment, and count four of the indictment is dismissed
without prejudice to the People to re-present any appropriate charges
under such count to another grand jury.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of criminal possession of a forged instrument in
the second degree (Penal Law § 170.25) and grand larceny in the fourth
degree (§ 155.30 [1]). Viewing the evidence in light of the elements
of those crimes 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 (see generally People v Bleakley,
69 NY2d 490, 495). “[R]esolution of issues of credibility, as well as
the weight to be accorded to the evidence presented, are primarily
questions to be determined by the jury” (People v Witherspoon, 66 AD3d
1456, 1457, lv denied 13 NY3d 942 [internal quotation marks omitted]).

     We agree with defendant, however, that reversal is required
because the verdict sheet contained an improper notation. Pursuant to
CPL 310.20 (2), deliberating jurors may be provided with “[a] written
list prepared by the court containing the offenses submitted to the
jury by the court in its charge and the possible verdicts thereon.
Whenever the court submits two or more counts charging offenses set
forth in the same article of the law, the court may set forth the
dates, names of complainants or specific statutory language, without
defining the terms, by which the counts may be distinguished;
                                 -2-                          1322
                                                         KA 09-01187

provided, however, that the court shall instruct the jury in its
charge that the sole purpose of the notations is to distinguish
between the counts.” “Nothing of substance can be included [in the
verdict sheet] that the statute does not authorize” (People v Miller,
18 NY3d 704, 706).

     Here, CPL 310.20 (2) was violated when County Court annotated the
verdict sheet with, inter alia, the check number corresponding to
count two of the indictment, under which defendant was convicted of
criminal possession of a forged instrument in the second degree.
Under these circumstances, the error requires reversal of the judgment
with respect to both the conviction under that count and the
conviction of grand larceny in the fourth degree as a lesser included
offense under count four of the indictment because, despite the
absence of any improper annotation in relation thereto, count four is
“factually related” to count two (People v Kelly, 76 NY2d 1013, 1015;
see People v Williams, 237 AD2d 982, 983, lv denied 90 NY2d 866).
Contrary to the People’s contention, “harmless error analysis is
inappropriate where the limits imposed on verdict sheet annotations by
CPL 310.20 (2) have been exceeded” (Miller, 18 NY3d at 709).

     We agree with defendant that reversal is also required based on
the court’s improper limitation of defense counsel’s summation. “It
is, of course, the right of counsel during summation ‘to comment upon
every pertinent matter of fact bearing upon the questions the jury
have to decide’ ” (People v Ashwal, 39 NY2d 105, 109 [citation
omitted]). Here, the court sustained the People’s objection to the
part of defense counsel’s summation that impugned the credibility of
defendant’s alleged accomplice by suggesting that he testified against
defendant only to shorten his own sentence. The court erred in
sustaining that objection because the prosecutor had previously
elicited testimony regarding the alleged accomplice’s cooperation
agreement and sentencing promise. Inasmuch as the evidence of
defendant’s guilt is not overwhelming, the error is not harmless (see
People v Santiago, 17 NY3d 661, 673-674; People v Crimmins, 36 NY2d
230, 241-242).

     We thus reverse the judgment and grant a new trial on count   two
of the indictment. Inasmuch as defendant was convicted of grand
larceny as a lesser included offense under count four of the
indictment, we dismiss that count with leave to re-present any
appropriate charges thereunder to another grand jury (see People   v
Gonzalez, 61 NY2d 633, 634-635; People v Collier, 303 AD2d 1008,   1009,
lv denied 100 NY2d 579). In light of our determination, we need    not
address defendant’s remaining contentions.




Entered:   December 28, 2012                    Frances E. Cafarell
                                                Clerk of the Court
