People v. Melendez , 57 A.D.2d 522 ( 1977 )

Judgment of the Supreme Court, New York County, rendered December 5, 1975, convicting defendant after trial of two counts of criminal sale of a controlled substance in the second degree and sentencing him to concurrent terms of imprisonment of six years to life, unanimously reversed, on the law, and a new trial directed. At trial, defendant, in testifying, disputed that on either occasion specified in the indictment he had made any money or profited in any way in procuring narcotics for the undercover police officer who testified. Defendant asserted that he procured the narcotics as a favor for the "informant” who had accompanied the police officer. Inasmuch as a most favorable view of the evidence would support a conclusion by the jury that defendant acted solely for the undercover police officer who sought to obtain the narcotics (People v Steele, 26 NY2d 526), the court was required to charge "agency” as requested by defense counsel (People v Buster, 286 App Div 1141; People v Fortes, 24 AD2d 428, 429; People v Lindsey, 16 AD2d 805, affd 12 NY2d 958). Concur—Kupferman, J. P., Lupiano; Birns and Markewich, JJ.