Summary
holding that defendant who "voices no objection to the content of the verdict sheet, despite being given adequate opportunity to do so," gives "implicit, if not explicit consent to the submission of an annotated verdict sheet" to the jury
Summary of this case from Flores v. GreinerOpinion
April 8, 1996
Appeal from the Supreme Court, Kings County (Lombardo, J.).
Ordered that the judgment is affirmed.
The defendant contends that the trial court committed reversible error by submitting a verdict sheet to the jury which described elements of the crimes ( see, CPL 310.10). However, the defendant consented to the submission of this expanded verdict sheet ( see, People v. McGuire, 205 A.D.2d 805). The defense counsel was aware from the start of the court's charge to the jury that a verdict sheet was going to be submitted, was aware of the contents of the verdict sheet, and had an opportunity to review the verdict sheet before the jury started its deliberations. When the court inquired whether either side had any exceptions to the charge or verdict sheet, the defense counsel was silent. When the court asked if there were any "requests", defense counsel indicated only that the verdict sheet should include language explaining the effect of intoxication as it related to the homicide charges, but otherwise did not object to the verdict sheet or make any further requests. Although a defendant's lack of objection to the submission of an annotated verdict sheet "cannot be transmuted into consent" ( People v Damiano, 87 N.Y.2d 477), where, as here, the defendant raises objection to the perceived deficiency of the verdict sheet, but voices no objection to the content of the verdict sheet, despite being given adequate opportunity to do so, the failure to specifically object constitutes implicit, if not explicit, consent to the submission of an annotated verdict sheet ( see, People v. Taylor, 76 N.Y.2d 873; People v. McGuire, supra).
Nor is there merit to the defendant's contention that the court erred in imposing consecutive sentences. According to the evidence the defendant possessed the weapon while he searched for a person whom he believed had abused his sister, but over an hour later the defendant shot and killed the victim, the brother of his initial target. From these facts, the jury could have reasonably inferred that the defendant possessed the gun with intent to use it unlawfully against another person prior to and separate from the ultimate act which resulted in the homicide charge, to wit, the shooting of the victim. Accordingly, the imposition of consecutive sentences was neither impermissible nor an improvident exercise of discretion ( see, People v. James, 211 A.D.2d 824; People v. Marby, 151 A.D.2d 507, 508; People v Robbins, 118 A.D.2d 820).
The defendant failed to object to the prosecutor's peremptory challenge to a juror of Japanese descent. Therefore, the defendant's claim that the challenge was exercised in a discriminatory manner is not preserved for appellate review ( see, People v. Holman, 216 A.D.2d 488).
The defendant's sentence was not excessive ( see, People v Suitte, 90 A.D.2d 80).
We have considered the defendant's remaining contentions and find them to be without merit. Santucci, J.P., Altman, Krausman and Goldstein, JJ., concur.