THE PEOPLE &C., APPELLANT-RESPONDENT, v. ANTHONY BROWN, RESPONDENT-APPELLANT.
90 N.Y.2d 872, 684 N.E.2d 26, 661 N.Y.S.2d 596 (1997).
July 1, 1997
2 No. 118 (1997 NY Int. 134)
Decided July 1, 1997
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Anthea H. Bruffee, for appellant-respondent.
Karen M. Kalikow, for respondent-appellant.
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 AD2d 474, appeal denied 88 NY2d 936). 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 NY2d 383, 389 (defendant's implied consent to a
mistrial); see also, People v Connor, 63 NY2d 11, 15 (defendant's
implied consent to be prosecuted by misdemeanor complaint rather than
information); People v Epps, 37 NY2d 343, 350, cert denied 423 US 999
(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.
SNIPPETS:
THE PEOPLE &C., APPELLANT-RESPONDENT, v. ANTHONY BROWN, RESPONDENT-APPELLANT.
This memorandum is uncorrected and subject to revision before publication in the New York
The People's appeal from the order of the Appellate Division, modifying the judgment of
On the defendant's appeal, that order, which also affirmed Supreme Court's denial of
the Appellate Division's resolution of the issue of submission of the annotated verdict sheet
While consent can be express or implied, we cannot conclude that the Appellate Division made
We have repeatedly held that the question of a defendant's implied consensual relinquishment
In our view, the Appellate Division's finding of no consent could not have been and was not
There being evidentiary support in the record for the finding by the courts below that
We likewise agree with the Appellate Division's rejection, as meritless, of defendant's
* We note also that in this case the Appellate Division refrained from exercising its
Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine, Ciparick and Wesley concur.
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