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JUDGE’S FIRST AGREEING WITH PROSECUTION’S REQUEST NOT TO CHARGE THE JURY WITH CONSTRUCTIVE POSSESSION AND THEN GIVING THE CHARGE WAS REVERSIBLE ERROR.

The Court of Appeals, reversing defendant's conviction, in a very brief memorandum, determined the trial judge's decision not to charge the jury with constructive possession and then giving the charge was not harmless error:

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 … . People v Smalling, 2017 NY Slip Op 03442, CtApp 5-2-17

CRIMINAL LAW (JUDGE'S FIRST AGREEING WITH PROSECUTION'S REQUEST NOT TO CHARGE THE JURY WITH CONSTRUCTIVE POSSESSION AND THEN GIVING THE CHARGE WAS REVERSIBLE ERROR)/CONSTRUCTIVE POSSESSION (CRIMINAL LAW, JUDGE'S FIRST AGREEING WITH PROSECUTION'S REQUEST NOT TO CHARGE THE JURY WITH CONSTRUCTIVE POSSESSION AND THEN GIVING THE CHARGE WAS REVERSIBLE ERROR)/JURY INSTRUCTION (CRIMINAL LAW, JUDGE'S FIRST AGREEING WITH PROSECUTION'S REQUEST NOT TO CHARGE THE JURY WITH CONSTRUCTIVE POSSESSION AND THEN GIVING THE CHARGE WAS REVERSIBLE ERROR)

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