
    [75 NE3d 665, 53 NYS3d 248]
    The People of the State of New York, Respondent, v Omar A. Smalling, Appellant.
    Argued March 23, 2017;
    decided May 2, 2017
    
      APPEARANCES OF COUNSEL
    
      Lynn W.L. Fahey, Appellate Advocates, New York City GJenin 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 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]).

Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Garcia and Wilson concur.

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