Opinion
March 31, 1975
Appeal by defendant from a judgment of the County Court, Nassau County, rendered March 20, 1974, convicting him of criminally selling a dangerous drug in the third degree and criminal possession of a dangerous drug in the fourth degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. No questions as to the facts upon which the judgment is based have been raised or considered. In our opinion, the trial court erred in refusing to instruct the jury that, if it found that defendant had acted solely as the agent of the buyer, he could not be convicted of the crime of selling narcotics (People v Lindsey, 16 A.D.2d 805, affd. 12 N.Y.2d 958; People v Silverman, 23 A.D.2d 947; People v Branch, 13 A.D.2d 714). Rabin, Acting P.J., Hopkins, Martuscello, Cohalan and Christ, JJ., concur.