Opinion
January 10, 1978
Judgment, Supreme Court, New York County, entered January 5, 1976, convicting defendant of criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree, and sentencing him to an indeterminate term of imprisonment from one year to life, and a determinate term of imprisonment of six months, respectively, to run concurrently, is unanimously modified, on the law, to the extent that the criminal sale count is reversed and remanded for a new trial, and is otherwise affirmed. At trial the evidence presented the issue of agency. The charge to the jury is subject to the interpretation that if defendant was found to have received some benefit for himself he could not be considered an agent. The question of personal gain is a factor to be considered by the jury in assessing the defense of agency; it does "not preclude a finding one way or the other on the issue, which remains a question of fact for the jury." (People v Rodriguez, 56 A.D.2d 545; see, also, People v Valentine, 55 A.D.2d 585.) The charge herein precluded such factual consideration.
Concur — Kupferman, J.P., Lupiano, Evans and Markewich, JJ.