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Defense Counsel not Ineffective for Consenting to Annotated Descriptions of Defendant’s Alleged Conduct on Jury Verdict Sheet

People v. O’Kane

New York Court of Appeals

2018 NY Slip Op 00859

Decided February 8, 2018


Issue: Whether a defense attorney’s consent to verdict sheet annotations beyond those permitted by CPL 310.20 constitutes ineffective assistance of counsel.

Holding: The New York Court of Appeals held that a defense attorney’s consent to such annotations does not deprive a defendant of meaningful representation.

Facts: Defendant O’Kane was charged with four counts of aggravated harassment, two counts of stalking, and eight counts of criminal contempt. During trial, the court provided the jury with a lengthy annotated verdict sheet that was meant to help the jury distinguish the between the many different acts alleged to have occurred. The court noted different time periods associated with each act and added brief descriptions of the alleged conduct. O’Kane was found guilty on twelve of the fourteen counts.

O’Kane appealed and the County Court reversed the convictions holding that defense counsel’s consent to the annotations “evidenced ineffective assistance of counsel at its worst,” noting the annotations were “highly inflammatory” and they “bolstered the People’s proof.” The Court of Appeals granted leave to appeal to the People.

Analysis: CPL 310.20(2) outlines what a verdict sheet is permitted to contain:

“Upon retiring to deliberate, the jurors may take with them: … A written list prepared by the court containing the offenses submitted to the jury by the court in its charge and the possible verdicts thereon.  Whenever the court submits two or more counts charging offenses set forth in the same article of the law, the court may set forth the dates, names of complainants or specific statutory language, without defining the terms, by which the counts may be distinguished; provided, however, that the court shall instruct the jury in its charge that the sole purpose of the notations is to distinguish between the counts.” 

Courts may go beyond what CPL 310.20 permits, however, if the court believes further annotations are necessary and only if both parties consent, as was the case here. Here, the “further” annotations to which O’Kane’s counsel consented were brief descriptions of each allegation. For instance, the annotation “(emailing approximately 15 times)” appeared beside one of the harassment charges to clarify to the jury the type of conduct that was associated with the charges.

The Court of Appeals concluded that O’Kane’s defense counsel was not ineffective for consenting to the addition of the descriptions on the verdict sheet, holding that defense counsel “had a sound strategic reason for consenting to the annotations” because 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.”

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