
    The People of the State of New York, Respondent, v John Shute, Appellant.
    [887 NYS2d 845]
   Judgment, Supreme Court, New York County (Eduardo Padro, J.), rendered July 27, 2005, convicting defendant, after a jury trial, of robbery in the second degree, and sentencing him, as a persistent felony offender, to a term of 15 years to life, unanimously reversed, as a matter of discretion in the interest of justice, and the matter remanded for a new trial. Appeal from order, same court and Justice, entered October 4, 2007, which denied defendant’s CPL 440.10 motion to vacate the judgment, unanimously dismissed as academic.

We need not determine whether the court’s jury instruction was erroneous in light of our decision in People v Williams (10 AD3d 213 [2004], affd 5 NY3d 732 [2005]) because, on the particular facts of this case, we conclude that defendant was prejudiced when the court granted the People’s application for such an instruction after both sides had delivered their summations.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Since we are remanding for further proceedings, we find it unnecessary to reach any other issues. Concur—Friedman, J.E, McGuire, Moskowitz, Acosta and DeGrasse, JJ.  