Kupferman, J., concurs on constraint in a separate memorandum, as follows: It is conceded that the charge with respect to the two counts of attempted robbery in the second degree was perfectly proper, as was the trial, and no prejudice has been shown.
The only issue is whether, in presenting the matter to the jury, the verdict sheet, in a commendable effort to differentiate between two types of attempted robbery in the second degree, added in parentheses the words "aided by another person" (Penal Law § 160.10), and for the other count "displayed what appeared to be a pistol" (Penal Law § 160.10[b]).
However "`misguided and erroneous'" may be the applicable law (Matter of Brostoff v Berkman, 79 N.Y.2d 938, 940), I am bound by the determination in People v Kelly ( 76 N.Y.2d 1013, affg 164 A.D.2d 767), and, accordingly, concur in the determination.
Nonetheless, it should be pointed out that requiring a new trial here imposes an undue burden on the criminal justice system (see, e.g., Matter of Gilbert O., 183 A.D.2d 466, 469 [Kupferman, J., dissenting] [1st Dept, May 12, 1992]; People v Rivera, 144 A.D.2d 258, 261 [Kupferman, J., dissenting]; People v Laster, 140 A.D.2d 233, 234 [Kupferman, J., dissenting]).
Defendant's application for summary reversal is denied.