PEOPLE v. SMALLING (2017)

MEMORANDUM:

The order of the Appellate Division should be reversed and a new trial ordered.

Although we reject defendant's contention that the evidence presented at trial did not support a charge of constructive possession, we nevertheless conclude that defendant is entitled to a new trial. The trial court erred in that it agreed to the People's request at the charge conference not to charge the jury on constructive possession, but then ultimately provided a constructive possession charge to the jury, resulting in prejudice to defendant (se e CPL 300.10[4]; People v. Greene, 75 N.Y.2d 875, 876–877 [1990] ). Under the unique circumstances of this case, the error is not harmless (cf. People v. Nevins, 16 AD3d 1046, 1047 [4th Dept 2005], lv denied 4 NY3d 889 [2005], cert denied 548 U.S. 911 [2006] ).

Order reversed and a new trial ordered, in a memorandum.

Chief Judge DiFIORE and Judges RIVERA, STEIN, FAHEY, GARCIA and WILSON concur.