PEOPLE v. WILSON (2019)

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, rape in the first degree (Penal Law § 130.35[1]) and rape in the third degree (§ 130.25[3] ).  Although defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence, “ ‘we necessarily review the evidence adduced as to each of the elements of the crimes in the context of our review of defendant's challenge regarding the weight of the evidence’ ” (People v. Stepney, 93 A.D.3d 1297, 1298, 940 N.Y.S.2d 752 [4th Dept. 2012], lv denied 19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218 [2012]).  We nonetheless conclude that, viewing the evidence in light of the elements of the crimes as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]), the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]).

Contrary to defendant's further contention and the People's concession, rape in the third degree (Penal Law § 130.25[3]) is not an inclusory concurrent count of rape in the first degree (see CPL 300.50[6];  see also CPL 300.30[4]).  The cases cited by the parties are inapposite because they implicate an exception that is not present here (see generally CPL 300.50[6][i], [ii];  People v. Hackett, 167 A.D.3d 1090, 1091, 89 N.Y.S.3d 429 [3d Dept. 2018];  People v. Stephanski, 286 A.D.2d 859, 860, 730 N.Y.S.2d 468 [4th Dept. 2001]).  Moreover, we are not bound by the People's erroneous concession (see People v. Berrios, 28 N.Y.2d 361, 366–367, 321 N.Y.S.2d 884, 270 N.E.2d 709 [1971];  People v. Colsrud, 144 A.D.3d 1639, 1640, 42 N.Y.S.3d 500 [4th Dept. 2016], lv denied 29 N.Y.3d 1030, 62 N.Y.S.3d 299, 84 N.E.3d 971 [2017]).

We agree with defendant, however, that the verdict sheet, which states in relevant part “Fourth Count:  Rape in the Third Degree (lack of consent/totality of circumstances),” contains an impermissible annotation.  Specifically, the “totality of circumstances” language is impermissible because it is not “statutory language” (CPL 310.20[2];  see Penal Law § 130.25[3]).  Rather, it is language from the pattern jury instructions (see CJI 2d[NY] Penal Law § 130.25[3]).  Supreme Court was therefore required to obtain defense counsel's consent prior to submitting the annotated verdict sheet to the jury (see People v. O'Kane, 30 N.Y.3d 669, 672, 70 N.Y.S.3d 877, 94 N.E.3d 440 [2018];  see also People v. Johnson, 88 A.D.3d 1293, 1295, 930 N.Y.S.2d 362 [4th Dept. 2011]).  Although “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. Johnson, 96 A.D.3d 1586, 1587, 946 N.Y.S.2d 769 [4th Dept. 2012], lv denied 19 N.Y.3d 1027, 953 N.Y.S.2d 560, 978 N.E.2d 112 [2012]), here, the record does not reflect whether defense counsel had that opportunity.  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 Johnson, 88 A.D.3d at 1295, 930 N.Y.S.2d 362).