¶1In People v Skinner (57 AD2d 785) this court reversed a conviction and directed a new trial because of various unobjected to errors, including failure *411of the Trial Judge to comply with the requirement of CPL 300.10 (subd 3) that he inform the parties prior to summation of the counts and offenses he would submit to the jury. While I disagreed with the decision of this court in People v Skinner (supra)I note that in the present case, unlike Skinner, the defendant was actually convicted on the "lesser” charge of which the court had not given notice to the attorneys. Further it is clear that defendant’s attorney’s summation would have been different if he had known that the lesser charge of receiving unlawful gratuities would be submitted to the jury; defendant’s attorney specifically said that even if defendant had received money and did nothing for it, the jury would have to acquit, a statement that was true of the charge of bribery but not of the charge of receiving unlawful gratuities. Further the charge of receiving unlawful gratuities was not so obviously a lesser included offense under bribery that we may assume that defendant’s attorney could not have been surprised by its submission. Thus defendant never had a fair notice or opportunity to defend himself against the charge of which he was actually convicted. This prejudice seems to me to be sufficiently great to warrant our overlooking the failure of defendant’s attorney to object to the court’s error in failing to inform counsel before summation of the court’s intention to submit the charge of receiving unlawful gratuities.
¶2Lane and Yesawich, JJ., concur with Evans, J.; Silverman, J. P., concurs in an opinion.
¶3Judgment, Supreme Court, New York County, rendered on March 2, 1977, unanimously reversed, on the law and as a matter of discretion in the interest of justice, and the indictment dismissed.