Opinion
April 15, 1980
Judgment, Supreme Court, New York County, rendered May 25, 1978, convicting defendant, after a jury trial, of criminal sale of a controlled substance in the third degree and sentencing him to a term from one year to life, is unanimously reversed, on the law, and the matter is remanded for a new trial. The Trial Judge erred in refusing to submit, as requested, the defense of agency to the jury. It is "the established New York rule that one who acts solely as the agent of a purchaser of narcotics cannot be convicted of the crime of criminal sale of a controlled substance." (People v. Roche, 45 N.Y.2d 78, 81.) Appellant testified that he had received no money and had merely, upon the undercover police officer's request for assistance in obtaining drugs, pointed out to him a person called "James" as someone who had heroin for sale. Thereafter, the transaction took place between the undercover officer and "James". In People v. Roche (supra, p 86), the court stated "so long as there is some reasonable view of the evidence that the defendant acted as a mere instrumentality of the buyer, determination of the existence of an agency relationship should be submitted to the jury with appropriate instructions". The People concede that the defendant was entitled to this charge.
Concur — Kupferman, J.P., Fein, Sandler, Bloom and Yesawich, JJ.