Notations Added by Judge to Verdict Sheet to Help Jurors Differentiate the Counts Did Not Violate CPL 310.20

The Court of Appeals, in a full-fledged opinion by Judge Pigott, with a concurring opinion, determined that the notations added to the verdict sheet by the judge to aid the jury in differentiating the counts did not violate the Criminal Procedure Law. The defendant was charged with making purchases at several different stores with forged credit cards.  The judge added store names, dates and locations to the relevant counts on the verdict sheet.  The Court of Appeals determined the notations were of the type allowed by CPL 310.20 (2).  The Court further determined that the use of a GPS tracking device on defendant’s car constituted a warrantless search.  But the search-error was deemed harmless under the facts.  With respect to the notations on the verdict sheet, the Court wrote:

As we explained in Miller “[n]othing of substance can be included [on a verdict sheet] that the statute does not authorize” (Miller, 18 NY3d at 706 [emphasis supplied]). The verdict sheet in Miller violated section 310.20 (2) because it included a legal instruction relative to burden of proof, i.e., words or terms “of substance” (id. at 706-707 [verdict sheet asked the jury if the defendant had established by a preponderance of the evidence that he acted under extreme emotional disturbance]). Verdict sheets may not be utilized to provide legal instruction to a deliberating jury; such instruction is to be provided by the trial court in its jury charge (see CPL 310.30 [stating that during deliberations “the jury may request the court for further instruction or information with respect to the law” and the court, upon notice to and in the presence of the People and the defense, “must give such requested information or instruction as the court deems proper”]). Inclusion of legal instructions on a verdict sheet runs contrary to the statute’s intended purpose of “facilitat[ing] an orderly and intelligent deliberative process” because it enhances the risk that the jurors will perceive the annotation as having special significance as opposed to merely assisting them in distinguishing among the counts.

The annotations here could not have been interpreted by the jury as being intended for any purpose other than identifying the individual stores defendant and his codefendant were alleged to have frequented or the banks relative to certain identity theft counts. Given the number of counts, coupled with the fact that the offenses occurred at different locations at different times (and, in some instances, on different dates), the trial court appropriately included the annotations so that the jury could distinguish the submitted counts. Under the circumstances, the names of the stores clearly fall within the term “complainant” delineated in the statute. People v Lewis, 2014 NY Slip Op 02969, CtApp 5-1-14