Opinion
October 30, 1980
Appeal from the Ontario County Court.
Present — Dillon, P.J., Hancock, Jr., Schnepp, Doerr and Moule, JJ.
Judgment unanimously reversed, on the law and facts, and indictment dismissed. Memorandum: Defendant appeals from a judgment upon a jury verdict convicting him of criminal sale of a controlled substance in the second degree (Penal Law, § 220.41 [prior to Sept. 1, 1979 amdt]) and criminal sale of a controlled substance in the third degree (Penal Law, § 220.39 [prior to Sept. 1, 1979 amdt]). The only fair conclusion to be drawn from the evidence is that defendant acted as the agent for the confidential informant and for the buyer, who was an undercover police officer. There being reasonable doubt as a matter of law that the defendant was the agent of the buyer, the indictment must be dismissed (People v. Bethea, 73 A.D.2d 920; People v Gonzales, 66 A.D.2d 828; People v. Munoz, 54 A.D.2d 844).