The opinion of the court was delivered by: Smith, J.:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
We have held that it is reversible error, not subject to harmless error analysis, to provide a jury in a criminal case with a verdict sheet that contains annotations not authorized by CPL 310.20 (2) (see People v Spivey, 81 NY2d 356, 361-362 ; People v Damiano, 87 NY2d 477 ). The Legislature, responding to these decisions, amended the statute to expand what is permitted in the verdict sheet, but it left the basic principle unchanged: Nothing of substance can be included that the statute does not authorize. Because that rule was violated in this case, our previous holdings require that defendant's conviction be set aside.
Defendant was charged with second degree murder and several other crimes as a result of the shooting of his former girlfriend. At defendant's request, the court submitted to the jury his claim that he acted under the influence of extreme emotional disturbance -- a claim which, if accepted, would result in his conviction for first degree manslaughter rather than murder (Penal Law §§ 125.25  [a]; 125.20 ). Extreme emotional disturbance is an affirmative defense, and the defendant has the burden of establishing it by a preponderance of the evidence (Penal Law §§ 125.25  [a]; 25.00 ).
The trial court submitted a six-page verdict sheet to the jury. The first page is the one in issue here. That page provided space for the jurors to record their verdict on the second degree murder charge, and instructed them that if their verdict on that count was guilty they must consider the extreme emotional disturbance defense and complete the rest of the page. The form then asked: "Has the Defendant established by a preponderance of the evidence that he acted under ExtremeEmotional Disturbance?" Defendant objected to this language, but the trial court refused to remove it.
The jury convicted defendant of second degree murder and found that the extreme emotional disturbance defense had not been established. The Appellate Division reversed and ordered a new trial, holding that there was a violation of CPL 310.20 (2) and that harmless error analysis could not be applied (People v Miller, 73 AD3d 1435 [4th Dept 2010]). A Judge of this Court granted the People leave to appeal, and we now affirm.
CPL 310.20 says, in relevant part: "Upon retiring to deliberate, the jurors may take with them: . . .
"(2) 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."
Until 1996, the statute did not contain the final ("Whenever") sentence; it ended with "verdicts thereon." In several cases decided under the earlier version of the statute, we ordered a new trial where a verdict sheet had been submitted to the jury that, in addition to identifying the crimes charged,listed some of the crimes' statutory elements (People v Nimmons, 72 NY2d 830 ; People v Taylor, 76 NY2d 873 ; People v Kelly, 76 NY2d 1013 ; see also People v Sotomayer, 79 NY2d 1029, 1030  [reversible error to submit a verdict sheet that "recited more" than CPL 310.20 allowed]). In Spivey, we said that "unless the parties agree" the submission of such a verdict sheet "is reversible error" (81 NY2d at 361). And in Damiano we rejected, over a strong dissent, the idea that an error of this kind could "be deemed harmless"; that approach, we said, would be inconsistent with "our decisions strictly construing this provision" (87 NY2d at 484-485).
In this case, the People do not dispute that the law as it stood at the time of Spivey and Damiano would require reversal of defendant's conviction. They argue, however, that a 1996 amendment to CPL 310.20 (2) (L 1996, ch 630, § 2) alters that conclusion in two ways: by authorizing the language that the judge submitted to the jury here, and by permitting the use of harmless error analysis. We conclude that the amendment did neither of these things.
The 1996 amendment added what is now the last sentence of CPL 310.20 (2). That sentence (later changed in a way irrelevant to this case) permits a verdict sheet to include "the dates, names of complainants or specific statutory language . . . by which the counts may be distinguished." This does alter the holding in Damiano and the cases that Damiano followed, but itdoes not permit what the trial court did here. The court added not "statutory language . . . by which the counts may be distinguished," but an instruction on burden of proof. Nothing in CPL 310.20 (2) can be read to authorize this.
Nor did the 1996 amendment to CPL 310.20 (2) address the issue of harmless error. It left intact the holding of Damiano that harmless error analysis cannot be applied where a verdict sheet exceeds the limitations that section 310.20 (2) imposes. The Appellate Division was therefore correct in holding that Damiano, and the cases on which Damiano was based, require reversal of defendant's conviction.
In arguing to the contrary, the People rely not on the statutory language contained in the 1996 amendment, but on language in the memorandum by which Governor Pataki expressed his approval of that amendment (Approval Mem dated September 4, 1996, Bill Jacket, L 1996, ch 630, at 7-9, reprinted in 1996 McKinney's Session Laws of NY, at 1907-1909). The Approval Memorandum acknowledges that "from time to time" judges might in the future place notations on verdict sheets ...