The Court of Appeals has stated that "requests to submit lesser included offenses, as a general rule, should be made prior to submission to the jury (see CPL 300.50 subd. 2; 470.05)" (People v Duncan, 46 N.Y.2d 74, 80 [1978]). With respect to nonjury trials, CPL 320.20 (5) provides that a court "before considering a multiple count indictment for the purpose of rendering a verdict thereon, and before summations... must designate and state upon the record the counts upon which it will render a verdict" (see People v Sanchez, 201 A.D.3d 599 [2022]; People v Hughes, 220 A.D.2d 529, 530 [1995]). Although the failure to follow the mandate of CPL 320.20 (5) can be considered harmless error (see Sanchez, 201 A.D.3d 599; People v Lugo, 87 A.D.3d 1403, 1404 [2011]; People v DeBaptiste, 237 A.D.2d 298 [1997]), reversible error occurs if a court considers a charge which is not actually a lesser included offense (see Hughes, 220 A.D.2d at 530).

Moreover, although it was error for the court to inform the parties, prior to summations, that it would instruct the jury on a specific instrumentality of death in its charge of manslaughter in the first degree, and then to subsequently remove that language from its charge following summations, the evidence of the defendant's guilt was overwhelming and there is no reasonable possibility under the circumstances of this case that this error contributed to the defendant's conviction. Accordingly, the error was harmless (see People v. Miller, 70 N.Y.2d 903, 907, 524 N.Y.S.2d 386, 519 N.E.2d 297 ; People v. Gonzalez–Alvarez, 129 A.D.3d 647, 648, 12 N.Y.S.3d 91 ; People v. DeBaptiste, 237 A.D.2d 298, 655 N.Y.S.2d 408 ; People v. Montgomery, 116 A.D.2d 669, 671, 497 N.Y.S.2d 737 ). We note that defense counsel presented a cogent, albeit ultimately unavailing, argument regarding the defendant's justification defense in his summation, which was not undermined by the court's subsequent instruction (cf.