Opinion
05-02-2017
The PEOPLE of the State of New York, Respondent, v. Omar A. SMALLING, Appellant.
Lynn W.L. Fahey, Appellate Advocates, New York City (Jenin Younes of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens (Jill A. Gross–Marks, Robert J. Masters and John M. Castellano of counsel), for respondent.
Lynn W.L. Fahey, Appellate Advocates, New York City (Jenin Younes of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens (Jill A. Gross–Marks, Robert J. Masters and John M. Castellano of counsel), for respondent.
OPINION OF THE COURT
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 (see CPL 300.10[4] ; People v. Greene, 75 N.Y.2d 875, 876–877, 554 N.Y.S.2d 466, 553 N.E.2d 1014 [1990] ). Under the unique circumstances of this case, the error is not harmless (cf. People v. Nevins, 16 A.D.3d 1046, 1047, 791 N.Y.S.2d 771 [4th Dept.2005], lv. denied 4 N.Y.3d 889, 798 N.Y.S.2d 734, 831 N.E.2d 979 [2005], cert. denied 548 U.S. 911, 126 S.Ct. 2938, 165 L.Ed.2d 963 [2006] ).
Chief Judge DiFIORE and Judges RIVERA, STEIN, FAHEY, GARCIA and WILSON concur.
Order reversed and a new trial ordered, in a memorandum.