The latter theory of guilt set forth by the court was based upon the "offer or agreement" definition of "to sell". The charge was improper since the alternative theory of guilt would properly only support a conviction of attempted sale, not a consummated sale, and the "attempt" crimes were never charged to the jury (see People v. Gonzales, 66 A.D.2d 828; People v. Giarratano, 62 A.D.2d 1042). Nevertheless, the error is harmless beyond a reasonable doubt since the attempt crimes are equivalent in degree and severity of punishment to the consummated sale crimes (see Penal Law, ยง 110.05, subds 1, 3) and the evidence is legally sufficient to support convictions of either one or the other (the People, inter alia, presented expert testimony that one of the substances sold contained heroin and the other contained cocaine, and the defense presented an expert who opined that the People's tests were inconclusive). We find defendant's remaining claims (including the claim that the record was inadequate) to be entirely without merit.
Prosecutors are given wide latitude in their summations to comment upon the evidence, but they must not abuse this right by overstepping the boundaries of fair comment (Williams v. Brooklyn El. R.R. Co., 126 N.Y. 96, 103; People v. Mull, 167 N.Y. 247; People v. Ashwall, supra, p 109). As to the reversal of defendant's conviction under Indictment No. 702/75, however, the direction of a new trial would not be proper, as the count of said indictment upon which the defendant was convicted charges criminal sale of a controlled substance predicated on a transaction in which the "controlled substance" proved to be lidocaine. Lidocaine is not a controlled substance and for this reason a conviction predicated on the sale thereof could not properly be obtained (see People v Giarratano, 62 A.D.2d 1042; People v. Rosenthal, 91 Misc.2d 750; People v. Boscia, 83 Misc.2d 501; see, also, People v. Lawson, 84 Misc.2d 24). Under such circumstances, even the inchoate crimes of attempted sale or possession could not be proved in the absence of a showing that the defendant intended to sell or possess a controlled substance, but mistakenly sold or possessed lidocaine. There is no such evidence in the case at bar.
Thus, the conviction of criminal possession of a controlled substance in the first degree, based upon the September 3, 1974 transaction, must fall since the defendant never had constructive or actual possession of the cocaine. The conviction of criminal sale of a controlled substance based upon the October 29, 1974 transaction, must also fall, not only because the defendant acted as the buyer's agent, but also because the matter sold was lidocaine (see People v. Giarratano, 62 A.D.2d 1042). To support a conviction of criminal sale of a controlled substance in the first degree, section 220.43 Penal of the Penal Law requires the knowing sale of a substance "containing a narcotic drug".