—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.
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 F2d 218; People v Pelchat, 62 NY2d 97, 105; People v Figueroa, 167 AD2d 101, 104). Accordingly, the Supreme Court properly ordered a new trial. Santucci, J. P., Joy, Goldstein and Feuerstein, JJ., concur. [See, 179 Misc 2d 35.]