Opinion
Argued November 22, 1999
December 20, 1999
Appeal by the People from an order of the Supreme Court, Kings County (Tomei, J.), dated November 6, 1998, which granted that branch of the defendant's motion which was pursuant to CPL 440.10(1)(h), in effect, to set aside a verdict of the same court finding him guilty of sodomy in the first degree, sexual abuse in the first degree (five counts), sexual abuse in the third degree (five counts), incest, and endangering the welfare of a child, and ordered a new trial.
Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Roseann B. MacKechnie, Leonard Joblovel, and Ruth E. Ross of counsel), for appellant.
Vivian Shevitz, Katonah, N.Y. (Roger B. Adler of counsel), for respondent.
FRED T. SANTUCCI, J.P., DANIEL W. JOY, GLORIA GOLDSTEIN and SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the order is affirmed.
We agree with the Supreme Court that allowing the verdict to stand under the circumstances of this case would violate due process (see, CPL 440.10[1][h]; Sanders v. Sullivan, 863 F.2d 218 ; People v. Pelchat, 62 N.Y.2d 97, 105 ; People v. Figueroa, 167 A.D.2d 101, 104 ). Accordingly, the Supreme Court properly ordered a new trial.
SANTUCCI, J.P., JOY, GOLDSTEIN, and FEUERSTEIN, JJ., concur.