Opinion
December 6, 1976
Appeal by defendant from a judgment of the Supreme Court, Westchester County, rendered April 23, 1976, convicting him of sodomy in the first degree (three counts), upon a jury verdict, and imposing sentence. Judgment reversed, as an exercise of discretion in the interest of justice, and new trial ordered. Despite extensive efforts to keep from the jury the knowledge that the defendant's codefendant had been convicted of murder one year earlier, this information found its way into the jury room and was discussed during deliberations (see People v Gardella, 55 A.D.2d 607). The evidence against both defendants was almost identical, and the only logical verdict would have been a conviction of both defendants or an acquittal of both of them. Defendant's substantial rights were prejudiced and he should receive a new trial (cf. People v Cocco, 305 N.Y. 282). Cohalan, Acting P.J., Margett, Damiani and Mollen, JJ., concur.