The People of the State of New York, Respondent, v. Chauncey Bray, Appellant, 21 A.D.2d 696

Appeal by defendant from a judgment of the County Court, Suffolk County, rendered April 26, 1963 after a jury trial, convicting him of selling narcotics (Penal Law, § 1751, subd. 1), and of possessing narcotics (Penal Law, § 1751-a); and imposing sentence. Judgment affirmed (see People v. Wright, 20 A D 2d 652). Beldoek, P.

J., Brennan and Hopkins, JJ., concur; Kleinfeld and Christ, JJ., dissent and vote to reverse the judgment insofar as it relates to the conviction and sentence for selling narcotics; to dismiss the count of the indictment which charges defendant with selling narcotics; to vacate the sentence upon the conviction for possession of narcotics; to affirm the judgment insofar as it convicts defendant of possession of narcotics; and to remand defendant to the County Court, Suffolk County, for appropriate resentencing upon the conviction for narcotics possession, with the following memorandum: In our opinion, the proof established that defendant was acting merely as an agent for the purchaser; hence, he cannot be convicted of selling narcotics (People v.

Lindsey, 16 A D 2d 805, affd. 12 N Y 2d 958; People v. Branch, 13 A D 2d 714; People v. Buster, 286 App. Div. 1141; United States v. Moses, 220 F. 2d 166; United States v. Sawyer, 210 F. 2d 169). The proof did establish, however, the defendant’s guilt of the misdemeanor of unlawful possession of narcotics.