Opinion
July 3, 1990
Appeal from the Supreme Court, New York County (Jerome Hornblass, J.).
The trial court erred when it refused to charge the defense of agency in this case, where a reasonable view of the evidence could have led the jury to conclude that defendant acted as a mere instrumentality of the buyer, thus supporting a theory of agency, which was the sole defense in this case. (People v Roche, 45 N.Y.2d 78, 86, cert denied 439 U.S. 958.) Specifically, defendant was entitled to the requested jury instruction based upon his testimony that he did not know the seller, and that he was acting solely on behalf of the buyer, a "pretty woman", who ultimately proved to be an undercover police officer. (People v. Roche, 45 N.Y.2d 78, 83, supra; People v Argibay, 45 N.Y.2d 45, 55, cert denied sub nom. Hahn-DiGuiseppe v New York, 439 U.S. 930; People v Miano, 143 A.D.2d 777 [2d Dept 1988]; People v. Garay, 128 A.D.2d 413 [1st Dept 1987]; see generally, People v. Lam Lek Chong, 45 N.Y.2d 64, 75, cert denied 439 U.S. 935 [enumerating the factors to be considered in determining whether an agency relationship existed].)
Accordingly, we reverse and remand for a new trial.
Concur — Ross, J.P., Carro, Wallach and Rubin, JJ.