PEOPLE v. WILSON (2021)

MEMORANDUM AND ORDER

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 whether defense counsel consented to the annotated verdict sheet (People v. Wilson, 187 A.D.3d 1586, 1586, 129 N.Y.S.3d 891 [4th Dept. 2020]). Upon remittal, the court determined following a reconstruction hearing that defense counsel impliedly consented to the annotated verdict sheet, which included the language “lack of consent/totality of circumstances” with respect to count four charging defendant with rape in the third degree (Penal Law § 130.25 [3]). “Although generally ‘the lack of an objection to the annotated verdict sheet by defense counsel cannot be transmuted into consent’ (People v. Damiano, 87 N.Y.2d 477, 484, 640 N.Y.S.2d 451, 663 N.E.2d 607 [1996]), 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. 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]; see People v. Howard, 167 A.D.3d 1499, 1500, 90 N.Y.S.3d 427 [4th Dept. 2018], lv denied 32 N.Y.3d 1205, 99 N.Y.S.3d 232, 122 N.E.3d 1145 [2019]). Here, the prosecutor testified at the reconstruction hearing that one or both of defendant's attorneys had been provided with a copy of the annotated verdict sheet at the close of proof and that defense counsel did not object to it. The mere fact that neither of defendant's attorneys recalled having received the annotated verdict sheet “does not directly contradict the [prosecutor's] testimony, which the court apparently credited” (Johnson, 96 A.D.3d at 1587, 946 N.Y.S.2d 769). Because defense counsel had an “ ‘opportunity to review’ ” the annotated verdict sheet before it was submitted to the jury and made no objection to it, we conclude that “the court properly determined that defendant impliedly consented to its submission to the jury” (id. at 1587-1588, 946 N.Y.S.2d 769; see Howard, 167 A.D.3d at 1500-1501, 90 N.Y.S.3d 427).

Defendant further contends that he was denied effective assistance of counsel. We reject that contention. Viewing the evidence, the law, and the circumstances of this case in their totality and as of the time of the representation, we conclude that defense counsel provided meaningful representation (see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981]).

Defendant next contends that he was denied a fair trial due to various instances of alleged prosecutorial misconduct. Defendant failed to object to most of those alleged instances, and thus he failed to preserve his contention for our review with respect to those instances. In any event, with respect to the alleged instances of misconduct, both preserved and unpreserved, we conclude that “ ‘[a]ny improprieties were not so pervasive or egregious as to deprive defendant of a fair trial’ ” (People v. Torres, 125 A.D.3d 1481, 1484, 3 N.Y.S.3d 851 [4th Dept. 2015], lv denied 25 N.Y.3d 1172, 15 N.Y.S.3d 304, 36 N.E.3d 107 [2015]).

We have reviewed defendant's remaining contentions and conclude that none warrants reversal or modification of the judgment.