Opinion
February 9, 1976
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered May 6, 1975, convicting him of criminal sale of a controlled substance in the first and second degrees, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. The charge to the jury in this case informed it that it could not find that defendant acted solely as an agent of the buyer if he had profited "in any manner" from the transaction. Testimony at the trial established that defendant had received $100 from an undercover police buyer for setting up a drug sale. If the jury had believed that this was defendant's sole profit, it would, under the other facts in this case, have been justified in finding that defendant acted solely as the buyer's agent, even though he profited from the transaction. The charge removed this option from the jury; a new trial is therefore required. Martuscello, Acting P.J., Cohalan, Rabin, Shapiro and Titone, JJ., concur.