Appellate Division, Fourth Department
People v. Johnson
Appealed from Supreme Court, Erie County
Background: The defendant was convicted at jury trial of a single-count indictment, robbery in the first degree. In challenging the weight of the evidence, the defendant focused on identification: the store manager who identified the defendant at trial testified to being able to observe the defendant wearing a “translucent” scarf over his mouth and nose.
A second issue concerned whether the verdict sheet contained an impermissible annotation. Included in the verdict sheet were the words “an armed felony” to describe robbery in the first degree.
Ruling: Decision is reserved and case is remitted to the trial court for a hearing.
Regarding the proof at trial, while a different verdict would not have been unreasonable, the jury gave proper consideration to the defense’s misidentification theory.
As to the verdict sheet, when a trial judge lists statutory elements or terms of the crime on the verdict sheet, the judge must permit defense counsel to review the annotated sheet and must obtain the defense counsel’s consent before submitting it to the jury. The absence of an objection cannot be transmuted into consent. Submitting an unannotated verdict sheet, not consented to by the defense counsel, cannot be deemed harmless error.
While certain annotations are permissible where two or more counts are submitted to the jury, this does not apply with a single count indictment, as here. The only remaining issue was whether the trial defense counsel consented to the annotated verdict sheet. That issue required a hearing, thus the case was remitted to county court.
Patrick Sheldon, UB Law Student, for defendant; and Michael J. Hillery for Erie County District Attorney’s Office