Opinion
October 14, 1976
Judgment, Supreme Court, Bronx County, rendered March 31, 1975, after a jury trial, unanimously modified, on the law, to reverse the conviction of criminal sale of a controlled substance in the third degree, and remanding that count for a new trial, and otherwise affirmed as to conviction for criminal possession of a controlled substance in the seventh degree and criminal possession of a hypodermic instrument. The defense as to the charge of criminal sale of a controlled substance was agency. (See People v Garcia, 50 A.D.2d 730.) Accordingly, when the jury requested further instruction as to the definition of a seller, the court should not have denied the defense request to also recharge on the definition of agency. Further, there being no suggestion about the defendant being engaged in other aspects of the drug traffic, introduction of evidence concerning the different levels of drug dealers in New York City was prejudicial to the defense. (See People v Stanard, 32 N.Y.2d 143.)
Concur — Kupferman, J.P., Birns, Capozzoli, Lane and Lynch, JJ.