We dissent from that part of the majority’s opinion holding that the trial court correctly denied defendant’s motion to sever the two counts of the indictment. In our view, it was an abuse of discretion to deny the motion.
The record clearly shows that after the alleged burglary, the defendant returned to his apartment, dropped off part of the stolen goods, and returned to the streets. At the time of his apprehension there was not the slightest evidence that he was in possession of, or ever had been in possession of, drugs. It was only after defendant was booked at headquarters that two officers were assigned to conduct separate investigations, one at defendant’s apartment where fruits of the burglary were obtained, and the other in the basement of the building into which defendant had fled, where the heroin was discovered. Looked at in this light it is abudantly clear that it cannot be said that the drug possession and the burglary were part of a single criminal incident or transaction (CPL 200.20, subd 2, par [a]), or that they were different criminal transactions or offenses of such a nature that either proof of the first offense would be material and admissible as evidence in chief upon a trial of the second or proof of the second would be material and admissible as evidence in chief upon a trial of the first (CPL 200.20, subd 2, par [b]).
With respect to CPL 200.20 (subd 2, par [a]) which permits two offenses to be joined when they are based on the same act *143or the same criminal transaction, it must be noted that CPL 40.10 (subd 2) defines "criminal transaction” as conduct which is comprised of two or more acts either "(a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture.” Here, it is clear that the commission of the drug and burglary crimes is not even marginally related in "purpose” or "objective” or "in point of time and circumstance of commission” as to constitute a single criminal act. The defendant’s act of alleged possession of a controlled substance was a continuing act, while the act of burglary was of short duration and related to the possession charge only because it was committed during the continuous act of possession. The separate criminal acts, however, were not related in "circumstance of commission”. (People v Burke, 79 Misc 2d 46.) Herein, the only incident common to both crimes was the apprehension of the defendant. Subsequent to apprehension two separate investigations revealed evidence of two separate crimes.
Second, the joinder of the two offenses in separate counts of the indictment has no statutory support (CPL 200.20, subd 2, par [b]). As noted above, the only incident common to both crimes was the fact of apprehension. Thus, proof of either of the offenses would not be admissible as evidence in chief upon the trial of the other. None of the categories set forth in People v Molineux (168 NY 264) for the admissibility of collateral evidence is present here.
Since the CPL does not permit indictment amendment to cure a misjoinder of offenses (CPL 200.70, subd 2, par [c]), defendant should have moved to dismiss the indictment (CPL 210.20, subd 1, par [a]; 210.25, subd 1) and, in our view, the Trial Judge should have dismissed the indictment and given the People permission to reintroduce the evidence before the Grand Jury (CPL 210.20, subd 4). However, the procedural errors should not preclude relief where, as here, the prejudice to defendant of the misjoinder of the drug and burglary charges is clear. Such prejudice obtained at trial because defendant might well have decided not to testify with respect to either one of the charges so as not to reveal his connection with the other. Moreover, forcing a defendant to face a heroin charge simultaneously with a burglary charge is prejudicial per se.
*144The defendant was denied a basic fundamental right to a fair trial. Evidence of guilt, however overwhelming, can never be permitted to negate that right (People v Crimmins, 36 NY2d 230, 238).
The judgment should be reversed, on the law and in the interest of justice, and new trials ordered on the separate counts of the indictment.
Staley, Jr., and Mikoll, JJ., concur with Greenblott, J.; Mahoney, P. J., and Main, J., dissent and vote to reverse in an opinion by Mahoney, P. J.
Judgment affirmed.