74 A.D.2d 910 | N.Y. App. Div. | 1980
Appeal by defendant from a judgment of the County Court, Nassau County, rendered December 18, 1978, convicting him of criminal sale of a controlled substance in the first degree, criminal possession of a controlled substance in the first degree, and criminal possession of a controlled substance in the third degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. In our opinion, the Trial Judge should have declared a mistrial following his granting of a severance to codefendant Gourdet on the ground that Gourdet could not receive a fair trial due to the introduction of certain evidence. By allowing the trial to continue against the appellant, defense counsel was forced to change his trial strategy (see People v Baum, 64 AD2d 655). The prejudice was compounded when Gourdet decided to plead guilty and appear as a witness for the prosecution. Defense counsel had little opportunity to prepare for such a surprising changeover in events. Under these circumstances, the appellant is entitled to a new trial. Rabin, J. P., Margett, Martuscello and Weinstein, JJ., concur.