Opinion
March 13, 1967
Judgment of the County Court, Suffolk County, rendered January 25, 1966, convicting defendant of the sale of narcotics (Penal Law, § 1751, subd. 1) and of possession of narcotics (Penal Law, § 1751-a, subd. 1), upon a jury verdict, and imposing sentence, reversed, on the law, and new trial ordered. The findings of fact below have not been considered. In our opinion, it was error for the Trial Judge to refuse the request of defendant for instructions to the jury that "if they believe that the defendant was in fact acting on behalf of the buyer, Paduano, acting on his behalf, then they must acquit him of all charges." The issue of agency of the defendant was presented to the jury under the evidence in the case and defendant was entitled to the charge ( People v. Lindsey, 16 A.D.2d 805, affd. 12 N.Y.2d 958; People v. Miller, 24 A.D.2d 1023). Christ, Acting P.J., Brennan, Hopkins, Benjamin and Munder, JJ., concur.