Opinion
March 24, 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 A.D.2d 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.