Opinion
Argued March 4, 1969
Decided April 9, 1969
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, GUSTAVE G. ROSENBERG, J.
Stuart D. Root for appellant.
Frank S. Hogan, District Attorney ( Sybil H. Landau and Michael R. Juviler of counsel), for respondent.
Judgment reversed and a new trial ordered in the following memorandum: Defense counsel sufficiently preserved for this court's review the point that defendant was entitled to an instruction to the jury that it could return a verdict against the defendant for possession of a narcotic drug if it did not believe that a sale had been proved beyond a reasonable doubt ( People v. Malave, 21 N.Y.2d 26).
Concur: Chief Judge FULD and Judges BURKE, BERGAN, KEATING and BREITEL. Judges SCILEPPI and JASEN dissent and vote to affirm.