The dissent herein is predicated upon one specific proposition and concerns only the first count in the indictment under which count the defendant was charged with feloniously selling a narcotic drug.
Pursuant to section 399 of the Code of Criminal Procedure the court was requested to charge as follows: “ I respectfully ask Your Honor to submit to the jury as a question of fact whether or not Malone is an accomplice of the defendant as to first and fourth counts of the indictment, and if they find that he is, they must acquit him, as there is no other evidence in the case tending to connect the defendant with the commission of the crime.”
The court declined to charge as requested. Indeed, no instructions were given the jury to determine as a question of fact whether Malone was an accomplice, and if found to be, *109to determine the question of corroboration. While the request was not wholly correct, it was sufficient to alert the court to the need for appropriate instructions to the jury.
Although it is not error for the trial court to refuse to charge an erroneous request or one which couples a proper with an improper request (People v. McGloin, 91 N. Y. 241, 254; People v. Lay, 254 App. Div. 372, affd. 279 N. Y. 737), that does not mean that the court may refuse to instruct the jury upon the law involved in a factual dispute which the jury must determine. Even if no request were made in this case, it was pertinent for the jury to determine whether Malone was an accomplice. “As a general rule, whether requested or not, the Court should instruct on every essential question in the case so as properly to advise the jury of the issues.” (People v. Viscio, 241 App. Div. 499, 502-503.) The failure to request a charge is not fatal. (People v. Montesanto, 236 N. Y. 396, 406; People v. Odell, 230 N. Y. 481; People v. Console, 194 App. Div. 824; People v. Kathan, 136 App. Div. 303; People v. Minkowitz, 220 N. Y. 399; Code Crim. Pro., § 527.)
We are cognizant of the case of People v. Pasquarello (282 App. Div. 405, affd. 306 N. Y. 759), and are in complete accord with the holding there that corroboration of the buyer’s testimony is unnecessary since a buyer per se is not an accomplice to the crime of selling a narcotic. In that case, there was no dispute that the prosecution witness was only a user making a purchase from the defendant solely for the purpose of indulging his personal needs. That, however, is not necessarily or exclusively the situation here. In essence, a request was made to submit to the jury as a question of fact for determination whether Malone was an accomplice of the defendant. From one version of the testimony, it is evident that Malone, the principal witness for the prosecution, made purchases of heroin from the defendant for the purpose of resale. It is not clear whether Malone was a user at the time the illegal arrangement was made or became an addict thereafter. Malone testified as follows: “ I told him I could run about half a piece, half an ounce, or something like that, a day, and naturally I wanted a direct connection, and I asked the price of his merchandise and he told me it was $140 an ounce. I didn’t have any money to pay, so I asked for a consignment, which he consented to give, it was agreed I was to get two pieces to start off with, and I believe that concluded it. Q. Two pieces would amount to what, please? A. Two ounces.”
*110If the jury were to believe that testimony, a proper inference could be drawn that the witness and the defendant entered into an arrangement whereby the witness was to sell heroin as an agent or in a joint venture with the defendant. At the very least, the defendant was entitled to have the jury instructed that it must determine whether or not Malone was an accomplice of the defendant.
Under the circumstances, there was error requiring a reversal of the conviction with respect to the first count, and we should therefore vote to reverse such conviction on the first count, and to order a new trial.
Peck, P. J., Bbeitel, Valente and McNally, JJ., concur in Per Curiam opinion; Fbank, J., dissents and votes to order a new trial in opinion.
Judgment affirmed.