Opinion
August 25, 1986
Appeal from the Supreme Court, Queens County (Sharpe, J.).
Judgment modified, on the law, by vacating the sentence imposed. As so modified, judgment affirmed, and matter remitted to the Supreme Court, Queens County, for resentencing.
Viewing the evidence in the light most favorable to the People, the jury was warranted in concluding that the defendant, acting in concert with another individual, sold cocaine to an undercover police officer (see, People v Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932).
The trial court properly refused to charge the jury with respect to criminal facilitation in the fourth degree (Penal Law § 115.00). Since it is "theoretically possible for a defendant illegally to sell a drug without intending to aid anyone else in the commission of a * * * felony" (People v Glover, 57 N.Y.2d 61, 64), criminal facilitation in the fourth degree does not constitute a lesser included offense of the crime charged (see, People v Glover, supra; People v Fischer, 94 A.D.2d 706).
The defendant's assertion of error with respect to the trial court's instructions to the jury on the agency defense is without merit. Since the court advised the jury, inter alia, that it "may consider whether the defendant received any monetary gain or other personal or beneficial gains from the sale", that charge was proper (see, People v Lam Lek Chong, 45 N.Y.2d 64, cert denied 439 U.S. 935; People v Oliver, 99 A.D.2d 789).
Finally, in view of the fact that the defendant was sentenced in the absence of counsel and his agreement to nevertheless proceed was equivocal and uninformed, the defendant was deprived of his right to counsel "at the crucial stage of sentencing" (People v Gonzalez, 43 A.D.2d 914, 915; see, People v Perez, 63 A.D.2d 911; People v Di Salvo, 19 A.D.2d 747). Therefore, he must be resentenced. Lawrence, J.P., Eiber, Kooper and Spatt, JJ., concur.