
    The People of the State of New York, Respondent, v Marvin Thoroughgood, Appellant.
   Judgment, Supreme Court, New York County, rendered September 6, 1977, convicting the defendant, after a jury trial, of criminal sale of a controlled substance in the first degree and sentencing him to an indeterminate term of from 15 years to life imprisonment, unanimously reversed, on the law, and the matter remanded for a new trial. The defendant was never in possession of the controlled substance. He was an intermediary between the undercover officer and the confidential informer and the one in possession. The defendant received a small fraction of the consideration for the controlled substance. At the trial, the defendant requested a charge on the defense of agency and the court refused on the ground that beyond a reasonable doubt the testimony in the case did not justify it. Further, the court prohibited the defendant’s counsel from utilizing the defense of agency in summation. In view of the determination of the Court of Appeals in recent cases, People v Roche (45 NY2d 78), People v Argibay (45 NY2d 45) and People v Di Guiseppe (45 NY2d 45), we reverse and remand for a new trial. Concur—Kupferman, J. P., Lupiano, Birns, Fein and Lane, JJ.  