Opinion
October 10, 1995
Appeal from the Supreme Court, Queens County (Friedmann, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered.
The hearing court properly determined that the defendant was not in custody at the time he made statements to the police (see, People v. Centano, 76 N.Y.2d 837; People v. Yukl, 25 N.Y.2d 585, cert denied 400 U.S. 851; People v. Tyce, 160 A.D.2d 1033; People v. Bailey, 140 A.D.2d 356) and there is no reason to disturb that determination on this record.
However, the People correctly concede that reversal of the defendant's conviction is required because the trial court submitted a verdict sheet to the jury which listed a statutory element of each murder count (see, People v. Spivey, 81 N.Y.2d 356; People v. Kelly, 76 N.Y.2d 1013; People v. Taylor, 76 N.Y.2d 873; People v. Percinthe, 200 A.D.2d 773; People v. Vargas [Raymond], 199 A.D.2d 291). In addition, the conviction for criminal possession of a weapon in the second degree must be reversed because this count is factually related to the murder counts and therefore may have been affected by the notations under the murder counts (see, People v. Kelly, supra; People v Vargas [Raymond], supra).
The defendant's remaining contention is unpreserved for appellate review. Balletta, J.P., Rosenblatt, Ritter and Pizzuto, JJ., concur.