Opinion
June 30, 1992
Appeal from the Supreme Court, Bronx County (Stephen L. Barrett, J.).
We find, as the People appropriately concede, that the trial court committed reversible error when it submitted, over the objection of defense counsel, a verdict sheet, which, with respect to each count, listed under the crime charged, in parenthesis, the mens rea element. This was doubtless done to distinguish the crimes charged, which consisted of a murder and two manslaughter counts, one based on intentional, and the other, reckless conduct. The Court of Appeals has forbidden such a submission (see, e.g., People v. Kelly, 76 N.Y.2d 1013), however limited, neutral and helpful it might be, especially in distinguishing two similar crimes or crimes of the same name. Whatever we think of the wisdom of such a rule, we are bound by precedent.
We have considered and reject defendant's argument that the witness Jones was never sworn as a trial witness. After the jury was sworn, but in its absence, Jones was sworn and gave testimony in what was described as a reopened Wade hearing, at the conclusion of which the jury was returned to the courtroom and Jones, having never left the witness stand, gave his trial testimony as the People's first witness. In the jury's presence, Jones was reminded that he was still under oath. No objection was ever taken to Jones not having been re-sworn. There was no statutory violation since Jones was sworn in the very criminal proceeding in which he was giving testimony, and of which the trial was but a part. (See, CPL 60.20; 1.20 [18].)
The decision and order of this court entered on March 3, 1992 [ 181 A.D.2d 419] is hereby recalled and vacated.
Concur — Sullivan, J.P., Carro, Rosenberger, Kassal and Rubin, JJ.