People v. Brown

• Decision Date: 01 July 1997
• Citation: 90 N.Y.2d 872,684 N.E.2d 26,661 N.Y.S.2d 596
• Parties: , 684 N.E.2d 26 The PEOPLE of the State of New York, Appellant-Respondent, v. Anthony BROWN, Respondent-Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 596

661 N.Y.S.2d 596

90 N.Y.2d 872, 684 N.E.2d 26

The PEOPLE of the State of New York, Appellant-Respondent, v. Anthony BROWN, Respondent-Appellant.

Court of Appeals of New York.

July 1, 1997.

Charles J. Hynes, District Attorney of Kings County, Brooklyn (Anthea H. Bruffee and Roseann B. MacKechnie, of counsel), for appellant-respondent.

Karen M. Kalikow, New York City, and Daniel L. Greenberg for respondent-appellant.

OPINION OF THE COURT MEMORANDUM:

The People's appeal from the order of the Appellate Division, modifying the judgment of conviction by reversing the convictions on various counts of the indictment and affirming the remaining convictions, should be dismissed. On the defendant's appeal, that order, which also affirmed Supreme Court's denial of defendant's motion under CPL 440.10 to set aside his said conviction, should be affirmed.

As to the People's appeal, the Appellate Division's resolution of the issue of submission of the annotated verdict sheet to the jury was predicated upon its finding that defendant had not consented to that submission. While consent can be express or implied, we cannot conclude that the Appellate Division made a purely legal determination when it found, upon examining the record, that defendant had not consented to the trial court's submission of the annotated verdict sheet to the jury, and rejected the People's contention there that defendant impliedly consented to the submission of the verdict sheet (cf., People v. Fecunda, 226 A.D.2d 474, 641 N.Y.S.2d 320, lv. denied 88 N.Y.2d 936, 647 N.Y.S.2d 169, 670 N.E.2d 453). We have repeatedly held that the question of a defendant's implied consensual relinquishment or waiver of important procedural rights is a "factual question" in which the findings of the lower court "must be upheld if there is any support in the record for that conclusion" (People v. Ferguson, 67 N.Y.2d 383, 389, 502 N.Y.S.2d 972, 494 N.E.2d 77 [defendant's implied consent to a mistrial]; see also, People v. Connor, 63 N.Y.2d 11, 15, 479 N.Y.S.2d 197, 468 N.E.2d 35 [defendant's implied consent to be prosecuted by misdemeanor complaint rather than information]; People v. Epps, 37 N.Y.2d 343, 350, 372 N.Y.S.2d 606, 334 N.E.2d 566, cert. denied 423 U.S. 999, 96 S.Ct. 430, 46 L.Ed.2d 374 [defendant's implied waiver of right to be present at trial] ). That principle controls with respect to implied consent to the submission of an annotated verdict sheet.

In our view, the Appellate Division's finding of no consent could not have been and was not made as a matter of law, but instead clearly reflected its analysis of competing inferences presented by the record. Thus, the Appellate Division's reversal and order of a new trial as to the convictions on those annotated counts of the verdict sheet, and those additional counts directly related thereto, was not "on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal" (CPL 450.90[2][a] ) and thus, the People's appeal must be dismissed. ^*

The Appellate Division properly left intact the convictions on counts involving other crimes, in which the verdict sheet only included identifying factual annotations, such as dates...