Opinion
April 6, 1993
Appeal from the Supreme Court, Bronx County (Frank Torres, J.).
As the People concede, on the authority of People v Taylor ( 76 N.Y.2d 873), it was error for the trial court, absent the parties' consent, to submit a verdict sheet to the jury, which, in addition to listing the crimes charged and the possible verdicts, also included the term "acting in concert with another" in each of the crimes charged.
Although defendant failed to preserve the issue for appellate review by failing to raise it before or during trial (see, People v Diaz, 184 A.D.2d 327, lv denied 80 N.Y.2d 928; People v Griffin, 114 A.D.2d 756), since the matter is being remanded for a new trial, the trial court should address the third count of the indictment charging criminal possession of a weapon in the second degree (acting in concert to possess a loaded pistol with intent to use it unlawfully against another), inasmuch as such count, when considered in the context of the other charges in the indictment, of which defendant was acquitted, as well as the trial evidence, is arguably duplicitous (see, People v Rosado, 64 A.D.2d 172, 177; People v Jones, 165 A.D.2d 103, 108, lv denied 77 N.Y.2d 962; People v James, 98 A.D.2d 863, 864-865).
We have considered defendant's other point regarding Officer McCarron's trial testimony about defendant's pretrial statement and find it unpersuasive. In addition, in light of our disposition, it is unnecessary to address the point seeking a reconstruction hearing.
Concur — Milonas, J.P., Ellerin, Kupferman and Kassal, JJ.