It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. Memorandum: We previously held this case, reserved decision, and remitted the matter to Supreme Court to determine whether defense counsel consented to the annotated verdict sheet ( People v. Wilson , 187 A.D.3d 1586, 1586, 129 N.Y.S.3d 891 [4th Dept. 2020] ). Upon remittal, the court determined following a reconstruction hearing that defense counsel impliedly consented to the annotated verdict sheet, which included the language "lack of consent/totality of circumstances" with respect to count four charging defendant with rape in the third degree ( Penal Law § 130.25 [3] ). "Although generally ‘the lack of an objection to the annotated verdict sheet by defense counsel cannot be transmuted into consent’ ( People v. Damiano , 87 N.Y.2d 477, 484, 640 N.Y.S.2d 451, 663 N.E.2d 607 [1996] ), it is well settled that consent to the submission of an annotated verdict sheet may be implied where defense counsel ‘fail[s] to object to the verdict sheet after having an opportunity to review it’ " ( People v. Johnson , 96 A.D.3d 1586, 1587, 946 N.Y.S.2d 769 [4th Dept. 2012], lv denied 19 N.Y.3d 1027, 953 N.Y.S.2d 560, 978 N.E.2d 112 [2012] ; seePeople v. Howard , 167 A.D.3d 1499, 1500, 90 N.Y.S.3d 427 [4th Dept. 2018], lv denied 32 N.Y
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. Memorandum: We previously held this case, reserved decision, and remitted the matter to Supreme Court to determine whether defense counsel consented to the annotated verdict sheet (People v Wilson, 187 A.D.3d 1586, 1586 [4th Dept 2020]). Upon remittal, the court determined following a reconstruction hearing that defense counsel impliedly consented to the annotated verdict sheet, which included the language "lack of consent/totality of circumstances" with respect to count four charging defendant with rape in the third degree (Penal Law § 130.25 [3]). "Although generally 'the lack of an objection to the annotated verdict sheet by defense counsel cannot be transmuted into consent' (People v Damiano, 87 N.Y.2d 477, 484 [1996]), it is well settled that consent to the submission of an annotated verdict sheet may be implied where defense counsel 'fail[s] to object to the verdict sheet after having an opportunity to review it'" (People v Johnson, 96 A.D.3d 1586, 1587 [4th Dept 2012], lv denied 19 N.Y.3d 1027 [2012]; see People v Howard, 167 A.D.3d 1499, 1500 [4th Dept 2018], lv denied 32 N.Y.3d 1205 [2019]).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. Memorandum: We previously held this case, reserved decision, and remitted the matter to Supreme Court to determine whether defense counsel consented to the annotated verdict sheet (People v Wilson, 187 A.D.3d 1586, 1586 [4th Dept 2020]). Upon remittal, the court determined following a reconstruction hearing that defense counsel impliedly consented to the annotated verdict sheet, which included the language "lack of consent/totality of circumstances" with respect to count four charging defendant with rape in the third degree (Penal Law § 130.25 [3]). "Although generally 'the lack of an objection to the annotated verdict sheet by defense counsel cannot be transmuted into consent' (People v Damiano, 87 N.Y.2d 477, 484 [1996]), it is well settled that consent to the submission of an annotated verdict sheet may be implied where defense counsel 'fail[s] to object to the verdict sheet after having an opportunity to review it'" (People v Johnson, 96 A.D.3d 1586, 1587 [4th Dept 2012], lv denied 19 N.Y.3d 1027 [2012]; see People v Howard, 167 A.D.3d 1499, 1500 [4th Dept 2018], lv denied 32 N.Y.3d 1205 [2019]).