Where It Is Possible Jurors Relied On an Illegal Ground a General Verdict Must Be Set Aside, Even If Alternative Legal Grounds Were Provided to the Jury

The Second Department determined that the inclusion on the verdict sheet of an offense that was not a designated felony under Mental Hygiene Law 10.03 (f) warranted an new trial, even though no objection was raised:

Generally, where no objection to an alleged error is advanced at trial, the objection is unpreserved for appellate review … . However, the inclusion on the verdict sheet of a crime that was not a designated felony within the meaning of Mental Hygiene Law § 10.03(f) presents such a fundamental error that the appellant’s failure to object does not bar our review of the issue in the exercise of discretion … . At trial, the State was required to establish by clear and convincing evidence that the appellant was a detained sex offender who suffered from a mental abnormality (see Mental Hygiene Law § 10.07[d]). “It is an established rule of Supreme Court jurisprudence that a general verdict of guilt must be set aside where the jurors in reaching their verdict may have relied on an illegal ground or on an alternative legal ground and there is no way of knowing which ground they chose” … . “Thus, the Supreme Court has consistently vacated general verdicts where one of the choices afforded to the jury was to find guilt on an unconstitutional theory. It has rejected the contention that the verdict should be upheld because the fact finder presumably based it on an alternative constitutional ground” … . Matter of State of New York v Todd L, 2014 NY Slip Op 04205, 2nd Dept 6-11-14