Admittedly, this appellant straddled the sometimes fine line between broker or middleman, for which he would bear the liability of a seller (People v Argibay, 45 NY2d 45), and an agent of the buyer which, as a defense, would immunize him from that liability (People v Roche, 45 NY2d 78; People v Lam Lek Chong, 45 NY2d 64, 73). The determination as to whether he was one or the other was one of fact for the jury as “[i]t follows that, so 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” (People v Roche, supra, p 86) and with the burden of proof upon the People to negate the defense of agency, beyond a reasonable doubt.
Unfortunately, here, while the question was submitted to the jury, that jury may well have been misled by an overly broad charge, thereby causing what may be an unjust result.
On July 19,1977 a team of police officers conducted a “buy and bust” naroctics operation in the vicinity of Madison Avenue and 131st Street. Undercover Officer McCann, carrying bills which had been photostated, drove to that location, where 10 or 12 people were standing near the curb. McCann called out from his automobile asking if anyone had “dimes” ($10 “bags” of heroin). Appellant Calvin Windley came over to the auto and asked McCann what he wanted. McCann replied, “dimes”. Codefendant Richard Blue, standing a few feet behind Windley, asked McCann if he wanted “Santa Claus”. McCann, unfamiliar with that term, ignored Blue. He again told Windley that he wanted “dimes”. Windley asked how many, and McCann replied “give me two”. Windley called over his shoulder, “duay, duay”. Blue walked to a tree about 15 feet from the auto. He bent down, reached among the cobblestones at the base of the tree and removed some glassine envelopes. *62Windley said, “all right, give me the money and you got to give me one dollar extra for me”. The officer gave Windley a 10, a 5 and 5 singles. Appellant counted it and said, “no good, you got to give me another dollar”. McCann gave him a five-dollar bill and appellant returned four singles. As Blue was returning to the car, another person walked over to the tree and Blue yelled at him to get away. Appellant said and did nothing. Blue then walked to the car and handed McCann two glassine envelopes. He said, “you’d better get out of the area fast, it’s hot”. At no time did appellant handle any of the glassine envelopes.
The officer then left the area and made a transmission to his backup team, which arrested Windley and Blue and recovered narcotics from the cobblestones at the base of the tree. Blue was found to have $20 in recorded bills in his possession, while only a single dollar bill was found on appellant. Both were convicted of criminal sale of a controlled substance in the third degree, the only count submitted to the jury. After returning with a verdict of guilty as to Blue, the jury requested further instructions on the defense of agency as to Windley. It subsequently also returned a guilty verdict as to him. He was sentenced to one and one-half years to life imprisonment, but was later resentenced to a term of one and one-half to four and one-half years.
. In instructing the jury as to the agency defense the court stated, in summary, “If you find that there is evidence beyond a reasonable doubt that the defendant Calvin Windley was in any way associated with the seller of the drug or acted in business with the seller of the drug, or that he was associated in any way with the enterprise of the seller, or that he had any personal or financial interest in bringing trade to the seller, then you must conclude that the defendant Calvin Windley did not act solely as an agent for the buyer and therefor your verdict will be guilty provided you find that all of the other elements of the crime have been proven beyond a reasonable doubt.” (Emphasis added.)
By his listing of the factors disjunctively, and equating each with guilt, the court appeared to be instructing the *63jury that they must find guilt solely on the basis of appellant’s financial interest (i.e., the one dollar) in the transaction—even if they might otherwise view that single dollar as a “tip” and appellant’s action as an accommodation of the buyer.
The court also stated, “if you find that the sale for which defendant has been charged is part of a common plan or scheme, then you cannot conclude that the defendant merely acted as an agent of the buyer in this transaction” thereby injecting into the jury’s consideration of the case the question of whether or not this sale was part of a common scheme or plan, i.e., one of several or many, whereas nowhere in the record does any evidence exist of such scheme or of more than one sale.
Immediately following the charge on the agency defense, the court gave a fairly standard charge on “acting in concert”, containing the following language:
“When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct, when acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes or intentionally aids such person to engage in such conduct.
“Under this general provision of law, the guilt of a defendant may be established without proof that the defendant did each and every act constituting the crime charged.
“Every person who intentionally participates in the commission of a crime may be found guilty of that very crime. Their presence at the scene of the crime is not sufficient.
“Participation is intentional if done voluntarily and purposefully, and with a specific intent to do some act which the law forbids.
“Soliciting or requesting another person to commit a crime, or intentionally aiding another person to commit a crime, constitutes participation * * *
“The degree or the extent to which a defendant intentionally participates in the commission of a crime is immaterial in affixing his responsibility but when two or more *64persons act together in the commission of a crime, the law does not stop to apportion the percentage of guilt that may attach to each of them.
“A Jury in a criminal case is not called upon to find for example, that one person is 60 per cent guilty and the other person 40 per cent guilty. The rule is that a person who intentionally aids in the commission of a crime is himself guilty of that crime.” (Emphasis added.)
Unfortunately, this otherwise correct language was not immediately and sufficiently modified with the caveat that it was subject to the agency defense. It must have been misleading to this jury and may well have resulted in a conviction simply because the act of the appellant in fact did aid in the commission of the crime.
The restatement by the court of the pertinent section of its charge at the jury’s request to again define agency was insufficient to correct the misleading effect of the original charge.
Appellant did not preserve the issue of the correctness of these portions of the charge as a question of law by appropriate exception below. However, “[u]nlike the Court of Appeals, the Appellate Division as an intermediate court of review has broad power to review questions of fact and discretion as well as questions of law (see CPL 470.15, 470.30). Hence, the Appellate Division, if it deems it appropriate, may exercise its discretionary power to review alleged errors even in the absence of that timely objection which is necessary to create a question of law”. (People v Cona, 49 NY2d 26, 33.)
The conviction should be reversed and the matter remanded for a new trial in the interest of justice and the exercise of discretion.
Fein, J. P. and Bloom, J., concur with Ross, J.; Sandler and Carro, JJ., dissent in separate opinions.
Judgment, Supreme Court, New York County rendered on November 2, 1979, nunc pro tunc as of June 22, 1978, affirmed.