The People of the State of New York, Respondent, v. Osmond K. Brown, Appellant

The People of the State of New York, Respondent, v Osmond K. Brown, Appellant. [668 NYS2d 540] [MAJORITY] Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him following a jury trial of two counts of murder in the second degree (Penal Law § 125.25 [1], [3] [intentional and felony murder]), two counts of robbery in the first degree (Penal Law § 160.15 [1], [2]) and criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]) stemming from an incident in which defendant allegedly shot the victim in the head with a rifle after the victim stole money from defendant’s estranged girlfriend. While we agree with defendant that the prosecutor engaged in misconduct on summation, we conclude that defendant was not thereby deprived of a fair trial (see, People v Galloway, 54 NY2d 396, 398). The prosecutor’s inappropriate reference on summation to defendant’s waiver of the right to remain silent is harmless error; there is no reasonable possibility that the error might have contributed to defendant’s conviction and thus it is harmless beyond a reasonable doubt (see, People v Crimmins, 36 NY2d 230, 237). County Court erred in its verdict sheet in failing to include “not guilty” as an option for each of the lesser included offenses (see, People v Piazza, 48 NY2d 151, 165). However, the court properly instructed the jury on the possible verdicts, both in its initial charge and in response to the jury’s inquiries, and thus “any error inhering in the verdict sheet was harmless” (People v Piazza, supra, at 165). The sentence is neither unduly harsh nor severe. We have reviewed defendant’s remaining contentions and conclude that they are without merit. (Appeal from Judgment of Erie County Court, Rogowski, J. — Murder, 2nd Degree.) Present — Green, J. P., Hayes, Callahan, Balio and Fallon, JJ.