
    The People of the State of New York Respondent, v David E. Jeffrey, III, Appellant.
   Judgment unanimously reversed, on the law and facts, and indictment dimissed. Memorandum: Defendant appeals from a judgment upon a jury verdict convicting him of criminal sale of a controlled substance in the second degree (Penal Law, § 220.41 [prior to Sept. 1, 1979 amdt]) and criminal sale of a controlled substance in the third degree (Penal Law, § 220.39 [prior to Sept. 1, 1979 amdt]). The only fair conclusion to be drawn from the evidence is that defendant acted as the agent for the confidential informant and for the buyer, who was an undercover police officer. There being reasonable doubt as a matter of law that the defendant was the agent of the buyer, the indictment must be dismissed (People v Bethea, 73 AD2d 920; People v Gonzales, 66 AD2d 828; People v Munoz, 54 AD2d 844). (Appeal from judgment of Ontario County Court—criminal sale of controlled substance, second degree, and another charge.) Present—Dillon, P. J., Hancock, Jr., Schnepp, Doerr and Moule, JJ.  