People v. Brown , 81 A.D.2d 619 ( 1981 )

— Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered March 30, 1979, convicting him of criminal sale of a controlled substance in the third degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, the criminal sale count is dismissed, and new trial ordered solely as to the charge of criminal possession of a controlled substance in the seventh degree. Defendant was charged with the crimes of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the seventh degree. After trial, the jury returned a verdict of guilty on the sale charge and not guilty on the charge of criminal possession of a controlled substance in the third degree. The charge of criminal possession of a controlled substance in the seventh degree was not reached by the jury because of the guilty verdict on the sale charge. In our view, the verdict was repugnant. The only basis for the jury’s not guilty verdict on the charge of criminal possession of a controlled substance in the third degree would be acceptance of defendant’s agency and/or entrapment defenses. Having accepted one of those defenses, the jury could not properly have found defendant guilty of the crime of criminal sale of a controlled substance in the third degree (cf. People v Rodriguez, 74 AD2d 858). Accordingly, the conviction on said charge must be reversed. Titone, J-. P., Gulotta, Cohalan and O’Connor, JJ., concur.