People v. Wilson

187 A.D.3d 1586

129 N.Y.S.3d 891 (Mem)

The PEOPLE of the State of New York, Respondent,

v.Robert G. WILSON, Defendant-Appellant.

793

KA 16-00641

Supreme Court, Appellate Division, Fourth Department, New York.

Entered October 2, 2020

DANIELLE C. WILD, ROCHESTER, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL), FOR RESPONDENT.

PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Supreme Court, Monroe County, for further proceedings.

Memorandum: We previously held this case, reserved decision, and remitted the matter to Supreme Court "to determine, following a hearing if necessary, whether defense counsel consented to the annotated verdict sheet" ( People v. Wilson , 175 A.D.3d 1800, 1801, 109 N.Y.S.3d 530 [4th Dept. 2019] ). Upon remittal, the court convened a reconstruction hearing, heard testimony of the parties' trial counsel, and closed the hearing without making any determination. That was error. The intent of our prior decision was for the court to make a determination, not merely to conduct a hearing ( id. ; see People v. Henderson , 148 A.D.3d 1779, 1780, 50 N.Y.S.3d 768 [4th Dept. 2017] ; see generally People v. Johnson , 96 A.D.3d 1586, 1587, 946 N.Y.S.2d 769 [4th Dept. 2012], lv denied 19 N.Y.3d 1027, 953 N.Y.S.2d 560, 978 N.E.2d 112 [2012] ). It is of course better for the hearing court, which has the advantage of seeing the witnesses and hearing their testimony, to make the determination following a reconstruction hearing, particularly where, as here, witness credibility is at issue (see People v. James , 221 A.D.2d 963, 963, 635 N.Y.S.2d 388 [4th Dept. 1995] ). We therefore hold the case, reserve decision, and remit the matter to Supreme Court to...