People v. Williams

Judgment unanimously modified on the law and as modified affirmed and a new trial is granted on counts three, four, five, seven and nine of the indictment in accordance with the following Memorandum: Supreme Court’s submission of a verdict sheet *983containing the elements of the three charges of burglary in the second degree over defense counsel’s objection constitutes reversible error (see, People v Mikel, 237 AD2d 982 [decided herewith]; People v Richardson, 234 AD2d 952; see also, People v Damiano, 87 NY2d 477). Thus, defendant’s conviction of two of those charges under counts three and four of the indictment must be reversed. Because counts five, seven and nine are factually related to the second degree burglary charges, those counts "too may have been affected by the improper notations on the verdict sheet” (People v Kelly, 76 NY2d 1013, 1015). We therefore modify the judgment by reversing the conviction under counts three, four, five, seven and nine of the indictment and vacating the sentences imposed thereon, and we grant a new trial on those counts. The conviction under counts 10 and 12 is affirmed. The court did not list the elements of those charges on the verdict sheet and those counts are not factually related to the improperly annotated second degree burglary charges (see, People v Damiano, supra; cf., People v Kelly, supra).

We reject the contention of defendant in his pro se supplemental brief that the evidence of physical injury is insufficient to support his conviction of burglary in the second degree under Penal Law § 140.25 (1) (b) (see, People v Guidice, 83 NY2d 630, 636; People v Rogers, 138 AD2d 419, lv denied 71 NY2d 1032). The remaining contentions in the pro se supplemental brief are not preserved for our review (see, CPL 470.05 [2]), and we decline to exercise our power to review those contentions as a matter of discretion in the interest of justice (see, CPL 470.15 [6] [a]). (Appeal from Judgment of Supreme Court, Monroe County, Mark, J.—Burglary, 2nd Degree.) Present—Denman, P. J., Green, Balio, Boehm and Fallon, JJ.