Green, J.P., and Scudder, J. (dissenting in part).
We respectfully dissent in part. We agree with the majority that the judgment should be modified by reversing those parts convicting defendant of criminal possession of a controlled substance in the first and third degrees, but our reasoning differs, and we do not *845agree that we should grant a new trial on those counts. In our view, Supreme Court erred in granting the People’s motion to amend the bill of particulars to allege that defendant constructively possessed the cocaine seized from the vehicle in which he was a passenger. The bill of particulars provided by the People prior to trial put defendant on notice that he was charged with physically possessing the cocaine and that the People were proceeding only under that theory (cf. People v Edwards, 304 AD2d 367, 368 [2003], lv denied 1 NY3d 571 [2003]; People v Ward, 282 AD2d 819, 821 [2001], lv denied 96 NY2d 942 [2001]). The majority acknowledges that the amendment to the bill of particulars altered the People’s theory of the case but concludes that defendant suffered no undue prejudice as a result of the amendment. We disagree. The fact that the People presented evidence that could possibly support the theory of constructive possession did not provide defendant with notice that the People’s theory had changed or eliminate the prejudice to defendant. The focus of defendant’s trial strategy was the People’s theory that defendant physically possessed the cocaine. By encouraging and then permitting the People to amend the bill of particulars at the close of their proof, the court deprived defendant of the ability to adjust his strategy to meet the new theory (see People v Roberts, 72 NY2d 489, 499 [1988]) and, in addition, deprived him of the defense that he did not physically possess the cocaine (see generally People v Johnson, 227 AD2d 927, 928 [1996], lv denied 88 NY2d 1022 [1996]; People v Thompson, 217 AD2d 929, 930 [1995]; People v Powell, 153 AD2d 54, 56-57 [1989], lv denied 75 NY2d 969 [1990]). The amendment permitted here “made a significant, substantive change in the theory of the prosecution at the close of trial, resulting in serious prejudice to defendant” (People v Ortiz, 207 AD2d 279, 280 [1994], lv denied 84 NY2d 909 [1994]; see Johnson, 227 AD2d at 928; Powell, 153 AD2d at 56-57). Because the evidence is legally insufficient to support the conviction of criminal possession of a controlled substance in the first and third degrees, we would modify the judgment by reversing those parts convicting defendant of those charges and dismissing counts 20 and 21 of the indictment. If those counts are dismissed, there is no need to grant a new trial based on the court’s error in denying defendant’s request for a circumstantial evidence charge with respect to those counts. Present—Green, J.P, Pine, Scudder, Martoche and Hayes, JJ.