
    The People of the State of New York, Respondent, v. Carl Miller, Appellant.
   Appeal by defendant from a judgment of the County Court, Westchester County, rendered June 12, 1964, convicting him of a felonious sale of a narcotic drug and felonious possession of a narcotic drug with intent to sell. Judgment reversed on the law and new trial ordered. In our opinion, the trial court erred in refusing to instruct the jury that if the)' found that defendant had acted solely as the agent of the buyer, he could not be convicted of the crime of selling narcotics (People v. Lindsey, 16 A D 2d 805, affd. 12 N Y 2d 958; People v. Silverman, 23 A D 2d 947; People v. Branch, 13 A D 2d 714). Ughetta, Christ, Hill and Benjamin, JJ., concur; Beldoek, P. J., dissents and votes to affirm the judgment with the following memorandum: There is no evidence that defendant was the agent of Narcotics Agent Maupins to purchase the heroin from a third party. Defendant made a financial gain as the result of this purchase and sale; therefore, he cannot be a mere agent of the buyer. In any event, the charge was sufficient to point out that, if defendant was only a messenger boy for Maupins, he was not the seller and could not properly be convicted.  