The majority opinion is devoid of any factual references to conversations between the defendant and the informant Bowe concerning procurement of the cocaine. The record indicates that the defendant and Bowe had previously engaged in many conversations involving cocaine and the inference that on March 1, 1978, the defendant procured the drug solely at the behest of his acquaintance Bowe could easily have been drawn by the jury. This inference is strengthened by the fact that the defendant made no profit on the instant transaction, and because Bowe had called the defendant five days earlier and asked that the defendant procure some cocaine for him. "[S]o long as there is some reasonable view of the evidence that the defendant acted as a mere instrumentality of the buyer, determination of the existence of an agency relationship should be submitted to the jury with appropriate instructions [citations omitted]” (People v Roche, 45 NY2d 78, 86). Further, if defendant was merely Bowe’s agent in acquiring the drug, he did not have an interest in the subsequent sale to the police officer Fargione. Since the "sale” is an essential element of the crime of which defendant was convicted (see Penal Law, § 220.39), the failure of the trial court to charge the jury on the issue of agency in effect eliminated this element from the prosecution’s burden of proof.
Since the majority concedes that "Feldman may have been Bowe’s agent”, it necessarily follows that the theory of agency should have been charged and the insistence by the majority that such a charge was obviated because the indictment names Fargione as the purchaser is without meaning. The judgment, therefore, should be reversed and a new trial ordered.
Staley, Jr., and Herlihy, JJ., concur with Kane, J.; Mahoney, P. J., and Greenblott, J., dissent and vote to reverse in a separate opinion by Mahoney, P. J.-
Judgment affirmed.