
    The People of the State of New York, Respondent, v Perfecto Mercado, Appellant.
   Judgment, Supreme Court, New York County, rendered January 16, 1976, convicting defendant, upon a jury verdict, of criminal sale of a controlled substance in the third degree, unanimously reversed, on the law, and a new trial ordered. At trial the evidence presented the issue of agency. The trial court erroneously charged the jury that if defendant received any benefit from his part in the transaction he was not the agent of the buyer. As we noted in People v Adams (60 AD2d 811-812): "The charge to the jury is subject to the interpretation that if defendant was found to have received some benefit for himself he could not be considered an agent. The question of personal gain is a factor to be considered by the jury in assessing the defense of agency; it does 'not preclude a finding one way or the other on the issue, which remains a question of fact for the jury.’ (People v Rodriguez, 56 AD2d 545; see, also, People v Valentine, 55 AD2d 585.) The charge herein precluded such factual consideration.” Concur—Lupiano, J. P., Birns, Fein, Sandler and Sullivan, JJ.  