Opinion
December 6, 1993
Appeal from the Supreme Court, Kings County (Aiello, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered. No questions of fact have been raised or considered.
The trial court submitted, over the defense counsel's objection, a verdict sheet which included, in parentheses, the words "felony" and "intentional" after the two counts of murder in the second degree. We agree with the defendant's contention that the parenthetical notations require reversal of his conviction. A trial court may not give a jury a verdict sheet that, in addition to listing the counts (see, CPL 310.20), also lists some of the statutory elements of the counts (see, People v Spivey, 81 N.Y.2d 356; People v Kelly, 76 N.Y.2d 1013; People v Nimmons, 72 N.Y.2d 830; People v Rogers, 184 A.D.2d 453; People v Ashlay, 152 A.D.2d 675). The Court of Appeals has held that such errors in the verdict sheet are not subject to harmless error analysis (see, People v Spivey, supra; People v Johnson, 81 N.Y.2d 980; People v Sotomayer, 79 N.Y.2d 1029; People v Kelly, supra; People v Taylor, 76 N.Y.2d 873; People v Nimmons, supra). Although only the murder counts were followed by improper notations, the remaining convictions must also be reversed since they were factually related to the murder counts and may therefore have been affected by the notations (see, People v Kelly, supra). Therefore, there must be a reversal and new trial in this case despite the overwhelming evidence of the defendant's guilt.
We find no error, however, in the additional notation instructing the jury to consider the count of criminal possession of a weapon in the third degree only if they found the defendant not guilty of criminal possession of a weapon in the second degree (see, People v Nimmons, 72 N.Y.2d 830, supra; People v McCray, 182 A.D.2d 838; People v Campbell, 170 A.D.2d 982). Mangano, P.J., Sullivan, O'Brien and Ritter, JJ., concur.