This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 43
The People &c.,
            Respondent,
        v.
Omar A. Smalling,
            Appellant.




          Jenin Younes, for appellant.
          Jill A. Gross-Marks, for respondent.




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


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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 NY2d 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 US 911 [2006]).
*   *   *   *   *     *   *   *    *      *   *   *   *   *   *   *   *
Order reversed and a new trial ordered, in a memorandum. Chief
Judge DiFiore and Judges Rivera, Stein, Fahey, Garcia and Wilson
concur.

Decided May 2, 2017




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