The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined defense counsel was not ineffective for agreeing to annotations on the verdict sheet which served to distinguish the aggravated harassment counts from one another, many of which involved similar behavior. County Court’s reversal of this City Court case on ineffective assistance grounds was reversed:
The trial court provided the jury with a four-page verdict sheet. To help the jurors distinguish between the many similar allegations covering more than three hundred different acts committed over twelve distinct time periods, the court annotated each count on the verdict sheet with a date or date range and a short description of the alleged criminal conduct. For example, the fourth aggravated harassment charge included the annotation “Between June 26, 2011 and July 6, 2011 (emailing approximately 15 times)” and the fourth criminal contempt charge read “On July 12, 2012 (occurrence in small claims court).” …
CPL 310.20 permits trial courts to annotate verdict sheets containing two or more counts charging offenses set forth in the same article of the law with “the dates, names of complainants, or specific statutory language . . . by which the counts may be distinguished” (CPL 310.20 [2]). Those annotations are intended to “enhance the ability of deliberating juries to distinguish between seemingly identical or substantially similar counts”. If the court believes different or further annotations would be instructive, it may “furnish an expanded or supplemental verdict sheet”… , although it may do so “only . . . with the consent of the parties” … . …
Both common sense and defense counsel’s summation demonstrate that trial counsel had a sound strategic reason for consenting to the annotations: they encouraged the jury to think about each count and the relevant evidence (restricted by date and type) independently, instead of concluding that Mr. O’Kane’s egregious behavior warranted a conviction on every seemingly identical count. People v O’Kane, 2018 NY Slip Op 00859, CtApp 2-8-18
CRIMINAL LAW (DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR AGREEING TO ANNOTATIONS ON THE VERDICT SHEET WHICH SERVED TO DISTINGUISH COUNTS ALLEGING SIMILAR BEHAVIOR IN THIS AGGRAVATED HARASSMENT CASE, COUNTY COURT REVERSED (CT APP))/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR AGREEING TO ANNOTATIONS ON THE VERDICT SHEET WHICH SERVED TO DISTINGUISH COUNTS ALLEGING SIMILAR BEHAVIOR IN THIS AGGRAVATED HARASSMENT CASE, COUNTY COURT REVERSED (CT APP))/INEFFECTIVE ASSISTANCE DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR AGREEING TO ANNOTATIONS ON THE VERDICT SHEET WHICH SERVED TO DISTINGUISH COUNTS ALLEGING SIMILAR BEHAVIOR IN THIS AGGRAVATED HARASSMENT CASE, COUNTY COURT REVERSED (CT APP))