People v. Rodriguez , 74 A.D.2d 858 ( 1980 )

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered June 13, 1978, convicting him of criminal possession of a controlled substance in the third degree and criminal sale of a controlled substance in the third degree, each of which was committed on a different date, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction of criminal possession of a controlled substance in the third degree, and the sentence imposed thereon, and the said count is dismissed. As so modified, judgment affirmed. Defendant arranged for an undercover police officer to purchase cocaine on two separate occasions from individuals whom defendant knew. At trial defendant raised the defense of agency, claiming that he did not sell the drugs to the police officer, but merely acted as the latter’s agent in assisting him to purchase the narcotics. With respect to the first transaction, the jury returned a verdict of not guilty as to the charge of criminal sale of a controlled substance in the third degree, but found defendant guilty of criminal possession of a controlled substance in the third degree. Defendant argues on appeal that the verdict of guilty as to possession in the third degree is inconsistent with his acquittal of the charge of criminal sale involving the same transaction. We agree. Defendant’s involvement in the transaction was so clearly established that he could only have been acquitted of criminal sale of cocaine if he was categorized as an agent of the undercover police officer who purchased the narcotics. "Having accepted the defense of agency, the jury could not properly have found defendant guilty of criminal possession of a controlled substance with intent to sell” (see People v Perez, 60 AD2d 656, 657). Accordingly, the conviction of criminal possession of a controlled substance in the third degree must be reversed. Hopkins, J. P., Mangano, Gibbons and Rabin, JJ., concur.