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
-2- 1035 

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